no abstract available / Dissertation (LLM)--University of Pretoria, 2013. / Public Law / unrestricted

No description available.

In 2000, two international organizations—the Financial Action Task Force (FATF) and the Organization for Economic Development (OECD)—attempted to attack the problems of money laundering and tax evasion through coercive soft law. Both organizations attempted to induce state compliance with international standards by placing noncompliant states on publicly available blacklists. The FATF blacklist, Non-Cooperative Countries or Territories, documented states that failed to implement international anti-money laundering standards and the OECD blacklist, Uncooperative Tax Havens, documented states that failed to implement international tax information-sharing agreements. This report examines the Cayman Islands’ quick compliance with these two international efforts. The report hypothesizes that the Cayman Islands’ complied quickly with both the FATF and OECD initiatives because the Cayman Islands’ had a strong financial institutional capacity and a high level of reputational risk from not complying. The report develops a methodology for testing this theory against other jurisdictions placed on both of the original FATF and OECD blacklists. The testing reveals that while financial institutional capacity and reputational risk may have contributed to the Cayman Islands’ and other states’ compliance with the FATF and OECD initiatives, these factors were not determinative. The report concludes that better metrics for state institutional capacity and reputational risk are needed to accurately measure states’ compliance with the FATF and OECD regimes. / text

Zugl.: Frankfurt (Main), Univ., Diss.

The EU regulatory framework for direct taxation is composed of three interconnected elements. First, having satisfied the requirement of a unanimous vote, the EU adopted a range of directives on the basis of the general harmonisation provision (Article 115 TFEU). Therefore, a traditional hard law framework harmonising some aspects of direct taxation exists in the EU. Second, case law is an indirect method of exerting influence on the direct tax field. As long as no positive integration has been brought about, the Member States are free to regulate this sphere as they see fit. The boundaries of their regulatory freedom are imposed, however, by negative integration i.e. by the ECJ applying the Treaty rules on non-discrimination. Jurisprudence has been an influential and dominant regulatory tool. Third, corporate taxation has also been regulated through soft law. The key example of a non-legally binding instrument in the direct tax field is the Code of Conduct for Business Taxation. This thesis investigates interactions between these hard and soft law measures and draws conclusions about the future of EU direct tax regulation. To achieve these aims, two research strands are explored. First, the thesis discusses the nature of the Code. In particular, it is investigated whether the Code can be regarded as an example of a ‘pure’ soft law measure. It is argued that the nature of the Code is not as clear-cut as is officially presented. Behind soft law terminology, the Code operates as a hard law measure. Supported by an examination of the OECD anti-harmful tax competition initiative, the thesis concludes that the use of soft law in tax regulation has not been wholly successful. The introduction of legally binding solutions is restricted by the requirement of unanimity, which is difficult to attain in the expanding EU. Thus, hard law has instead been introduced through the back door, raising valid questions about regulatory legitimacy. Second, this thesis explores the relationships between hard and soft law in the wider context of EU direct tax regulation. The extent to which the Code is embedded in the broader environment of tax regulation is analysed. The Code tends to be characterised as a soft law measure situated within the regulatory environment of taxation that, for years, has been dominated by hard law instruments. At this level, interactions between ECJ jurisprudence and soft law instruments are also explored. Consequently, the thesis demonstrates that hard law and soft law are not necessarily alternative choices; both approaches can be applied simultaneously to influence one regulatory field, and both offer different strengths and values. In a field as politically sensitive as direct taxation, soft law may prove to be insufficient to bring about real change. The addition of a hard law (or legally binding) element might be necessary to secure effectiveness of regulation. This thesis proposes that the current, disingenuous hybrid regulation of direct taxes in the EU should be replaced with a more transparent hybrid, where hard law measures are openly applied and soft law is given the opportunity to regulate in parallel and to its own distinct potential.

O sistema internacional testemunha a consolidação de um regime internacional de combate à lavagem de dinheiro. Fundado em premissas hodiernas do Direito Internacional, esse regime responde a uma ordem internacional multifacetada, que se verifica no progressivo protagonismo de atores subnacionais e de organismos não governamentais. A consequente relativização da função dos Estados, como vetores históricos das relações internacionais, enseja um processo de jurificação, por meio de instrumentos de soft law estabelecidos, em sua maioria, pelo GAFI. Analisa-se a formação histórica da lavagem de dinheiro e o respectivo processo de construção de antagonistas legais, tais como os tratados celebrados no âmbito das Nações Unidas e o soft law - paradigma consubstanciado na criação do GAFI. Examinam-se as recomendações do GAFI, na estruturação do regime internacional de combate à lavagem de dinheiro e na construção de projeções regionais do organismo, concentradas na expansão de seu espectro de atuação e de seu alcance. Estudam-se o processo de avaliação dos membros e não membros e o processo sancionador baseado na criação das listas de países não cooperantes, com o objetivo de evidenciar os seus papéis enquanto vetores de compliance. Ao final, trata-se o tema sob a perspectiva da compliance na ordem jurídica nacional, analisando a internalização das recomendações, no ordenamento brasileiro, desde a criminalização da lavagem de dinheiro até a estruturação administrativa dos órgãos de regulação (COAF, Banco Central, Superintendencia de Seguros Privados, entre outros) e da Unidade de Inteligência Financeira, de forma a evidenciar as alterações estruturais realizadas na legislação interna visando adequá-la às exigências internacionais. / The international system has been witnessing the consolidation of an transnational moneylaundering enforcement regime, built upon contemporary International Law premises. Such system tackles a multifaceted world order which one can attest by spotting the progressive protagonism of both subnational actors and non-governmental organizations and the resulting relativization of States functions historically the main vector of the international relations. The aforementioned phenomenon gives room to a jurification process lead by FATF soft law. Accordingly, this works analyzes the historical development of money laundering and the formation of its respective legal antagonists, such as the United Nation System treaties and soft law a paradigm consubstantiated by the launch of FATF. It examines FATF recommendations, the structuring of an international money-laundering enforcement regime and the organisms regional projections, generally focused on the expansion of its operating spectrum and outreach. It studies the members and non-members assessment procedure and their sanctioning process based on the enrollment of noncooperative countries, in order to highlight their role as compliance vectors. Lastly, it glances compliance through the Brazilian legal system, the internalization of FATF recommendations since money launderings criminalization so far as to the administrative arrangement of regulatory bodies (COAF, Central Bank, Private Insurances Superintendence, and so forth) and of the Financial Intelligence Unit, in order to highlight the structural changes made to the domestic legislation so that it adapts itself to international requirements.

No description available.

This dissertation examines changes that companies made in order to obtain Forest Stewardship Council (FSC) certification in the Canadian provinces of British Columbia, Alberta, Ontario and Quebec, and the role that provincial governments have played in the implementation of this emerging market-based form of governance. It analyzes the indirect roles that governments have played in either encouraging or inhibiting the adoption of certification through their policies, as well as the direct roles played in response to particular certification attempts that occurred on public land. Through the use of case studies of individual operations in each province, the interaction between state and non-state authority is explored, as well as the role that forest tenure played in each operation’s ability to obtain certification. The results reveal that the changes required to obtain certification were substantial but associated with only a small subset of the FSC’s Principles and Criteria, heavily weighted towards environmental issues. While corrective action requests are issued to the company pursuing certification, the results show that non-exclusive tenure limits a company’s ability to respond to these requests without the cooperation of the provincial government and resource users with overlapping tenure rights. However, limited duration of forest tenure does not preclude certification, and for the most part, provincial governments are found to play important facilitative roles in certification, both through their policies and regulations, and as providers of information and technical support. Further, the majority of the corrective actions were not required to be implemented prior to certification being awarded, but within the five year term of the certificate. This appears to have acted as a flexibility mechanism, allowing the certification system to secure the participation of companies in the short term, with the hope of leveraging greater change in the long term from the company, the government in question, and other resource users with overlapping tenure rights.

This dissertation examines changes that companies made in order to obtain Forest Stewardship Council (FSC) certification in the Canadian provinces of British Columbia, Alberta, Ontario and Quebec, and the role that provincial governments have played in the implementation of this emerging market-based form of governance. It analyzes the indirect roles that governments have played in either encouraging or inhibiting the adoption of certification through their policies, as well as the direct roles played in response to particular certification attempts that occurred on public land. Through the use of case studies of individual operations in each province, the interaction between state and non-state authority is explored, as well as the role that forest tenure played in each operation’s ability to obtain certification. The results reveal that the changes required to obtain certification were substantial but associated with only a small subset of the FSC’s Principles and Criteria, heavily weighted towards environmental issues. While corrective action requests are issued to the company pursuing certification, the results show that non-exclusive tenure limits a company’s ability to respond to these requests without the cooperation of the provincial government and resource users with overlapping tenure rights. However, limited duration of forest tenure does not preclude certification, and for the most part, provincial governments are found to play important facilitative roles in certification, both through their policies and regulations, and as providers of information and technical support. Further, the majority of the corrective actions were not required to be implemented prior to certification being awarded, but within the five year term of the certificate. This appears to have acted as a flexibility mechanism, allowing the certification system to secure the participation of companies in the short term, with the hope of leveraging greater change in the long term from the company, the government in question, and other resource users with overlapping tenure rights.

L'analyse des textes internationaux démontre que les règles du droit anglo-américain sont les plus sollicitées pour régir les contrats internationaux dès leur formation et jusqu'à leur extinction. La combinaison de différents facteurs explique ce phénomène actuel d'influence du droit anglo-américain et dévoile son ampleur. D'une part, le phénomène de la mondialisation, qui s'exprime essentiellement par l'internationalisation de l'économie, a entraîné une concurrence entre les nations, relative à l'attractivité de leur droit. La flexibilité et le pragmatisme du droit anglo-américain semblent, d'autre part, l'avoir emporté sur le légicentrisme du droit civil. Enfin, l'expansion des outils issus de l'analyse économique du droit dans les différents systèmes juridiques cosmopolites matérialise indubitablement ce phénomène anglo-américain de pénétration de la dimension économique dans la sphère juridique. Par ailleurs, plusieurs mécanismes contractuels anglo-américains sont importés dans les projets d'unification du droit des contrats; ceux-ci véhiculent effectivement la philosophie juridique des « commonlawyers ». Par rapport aux autres normes incorporées dans les textes internationaux essentiellement du droit romano-germanique, l'intégration des règles anglo-américaines a abouti à un renforcement des principes directeurs de la liberté et de la loyauté contractuelle ainsi qu'un affaiblissement du principe de la sécurité contractuelle / The analysis of international texts shows that the rules of Anglo-American law are the most used to regulate International contracts from their formation until their extinction. The combination of various factors explains this current phenomenon of influence of Anglo-American law and reveals its magnitude. On the one hand, the phenomenon of globalization, which is expressed essentially by the internationalization of the economy, has led to competition between nations for the attractiveness of their norms. The flexibility and pragmatism of Anglo-American law, on the other hand, seem to have prevailed over the legitimacy of civil law. Finally, the expansion of the tools resulting from the economic analysis of the law in the different cosmopolitan legal systems undoubtedly materializes this Anglo-American phenomenon of penetration of the economic dimension in the legal sphere. In addition, several Anglo-American contractual mechanisms are imported into the the projects of unification of the law of international contracts ; the effectively convey the legal philosophy of the common lawyers. The integration of Anglo-American rules has resulted in a strengthening of the guiding principles of freedom and contractual loyaulty, as well as weakening of the principle of contractual security