Selected US Tax Developments: Adams Challenge (UK) Limited: When Does a Treaty Provision Conflict with the Code?

In the United States, statutes and treaties are on an equal footing. Thus, in the event of a conflict between a statute and a treaty, the treaty does not automatically take precedence over the statute. Moreover, the US courts go to great lengths to avoid finding the existence of any conflict. This article discusses a recent case in which the Tax Court held, among other things, that a punitive deduction-disallowance rule applicable solely to non-US persons did not conflict with the non-discrimination article of the income tax treaty in effect between the United States and Canada.

Diplomatic Immunity Ratione Materiae and Crimes in International Law

Diplomatic immunity ratione materiae covers not official acts in general but merely acts performed in the exercise of diplomatic functions. Consequently, crimes in international law cannot be protected by this immunity because Article 3(1) of the Vienne Convention on Diplomatic Relations (vcdr) in general should accord with international law, although certain functions under the Article do not contain a ‘legal’ element. Further, diplomatic immunity ratione materiae cannot be upheld for jus cogens violations because Article 3(1) must not contradict a jus cogens prohibition. The dividing line between the procedural rule of immunity and the substantive rule of jus cogens is blurred by the fact that the scope of diplomatic immunity ratione materiae essentially hinges upon the contents a substantive treaty provision setting out diplomatic functions.

Re Review of Constitutionality of the Treaty between the Russian Federation and the Republic of Crimea on the Accession of the Republic of Crimea to the Russian Federation and on Forming New Constituent Entities within the Russian Federation that has Not Entered into Legal Force

374Treaties — Ratification — Application — Treaty between Russia and Republic of Crimea on the Accession of the Republic of Crimea to Russia and on Forming New Constituent Entities within the Russian Federation, 2014 — Treaty not yet in force — Constitutional review of treaty as a prerequisite for ratification — Ratification necessary before international treaty can enter into force — Signature of Treaty by Russian President — Date of entry into force — Whether Treaty can be applied before entry into force — Vienna Convention on the Law of Treaties, 1969 — Procedure for signature, conclusion and enactment of Crimea Accession Treaty — Treaty provision content — Whether compatible with Constitution of Russian FederationRelationship of international law and municipal law — Treaties — Signature — Ratification — Application — Treaty between the Russian Federation and the Republic of Crimea on the Accession of the Republic of Crimea to the Russian Federation and on Forming New Constituent Entities within the Russian Federation, 2014 — Compatibility with Constitution of Russian Federation — Constitutional review of Treaty prerequisite for ratification — Article 128(3) of Constitution — Federal Constitutional Law on the Constitutional Court of the Russian Federation — Federal Constitutional Law on Accession to the Russian Federation and Establishment of a New Constituent Entity within the Russian Federation — Whether Treaty can be applied before entry into force — Vienna Convention on the Law of Treaties, 1969 — Procedure for signature, conclusion and enactment of Crimea Accession Treaty — Treaty provision content — Whether compatible with Constitution of Russian Federation — Effect of legal acts in new constituent territories — Integration of Russian legal systemTerritory — Acquisition — Accession — Accession of Republic of Crimea to Russian Federation — New constituent territories — Republic of Crimea — Federal city of Sevastopol — Treaties — Treaty between Russian Federation and Republic of Crimea on the Accession of the Republic of Crimea to the Russian Federation and on Forming New Constituent Entities within the Russian Federation, 2014 — Whether accession carried out in accordance with Constitution of Russian Federation — Whether accession carried out in accordance with Treaty — Whether accession carried out in accordance with federal constitutional laws — Whether 375Treaty compatible with Constitution — Procedure for future accessions — Legal status of constituent territories — Regulation of State border — Integrity and inviolability of Russian territory — Constitutional values — Citizenship — Transition period — Military service — Elections — Effect of legal acts in new constituent territoriesNationality — Citizenship — Stateless persons — Crimea acceding to Russian Federation — New constituent territories of Russian Federation — Republic of Crimea — Federal city of Sevastopol — Ukrainian citizens and resident stateless persons at time of accession — Automatic Russian citizenship — Option to retain existing citizenship — Article 5 of Treaty between Russian Federation and Republic of Crimea on the Accession of the Republic of Crimea to the Russian Federation and on Forming New Constituent Entities within the Russian Federation, 2014 — Whether compatible with Constitution of Russian Federation — The law of the Russian Federation

Sharing is Caring: Transboundary Hydrocarbon Deposits on the Continental Shelf

The sovereign and exclusive rights of States to explore the continental shelf and exploit its resources implies an unfettered right to exclude any exploitation by a third State of hydrocarbons that are located on its continental shelf. Yet, these rights do not allow impairment to the sovereign and exclusive rights of third States to exploit resources that extend onto their continental shelves. State practice demonstrates multiple definitions of hydrocarbon deposits implying that the decision of whether a hydrocarbon deposit is transboundary may vary depending on the relevant treaty provision. State practice also indicates heterogeneous procedural and substantive approaches to the commencement of transboundary hydrocarbon deposits exploitation. These differences have substantive implications relevant to the determination of the constitutive elements of transboundary hydrocarbon deposits and for the circumstances under which a transboundary hydrocarbon deposit can operate under customary international law.

15. Review of Legality: Access

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The EU develops policy through regulations, directives, and decisions. Any developed legal system must have a mechanism for testing the legality of such measures. This chapter focuses on access to justice and review of legality by the EU Courts. There are a number of ways in which EU norms can be challenged, but the principal Treaty provision is Article 263 of the Treaty on the Functioning of the European Union (ex Article 230 EC). Five conditions must be satisfied before an act can successfully be challenged: (i) the relevant body must be amenable to judicial review; (ii) the act has to be of a kind that is open to challenge; (iii) the institution or person making the challenge must have standing to do so; (iv) there must be illegality of a type mentioned in Article 263(2); and (v) the challenge must be brought within the time limit indicated in Article 263(6). The UK version contains a further section analysing the relevance of legal challenge to EU norms in relation to the UK post-Brexit.

15. Review of Legality: Access

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The EU develops policy through regulations, directives, and decisions. Any developed legal system must have a mechanism for testing the legality of such measures. This chapter focuses on access to justice and review of legality by the EU Courts. There are a number of ways in which EU norms can be challenged, but the principal Treaty provision is Article 263 of the Treaty on the Functioning of the European Union (ex Article 230 EC). Five conditions must be satisfied before an act can successfully be challenged: (i) the relevant body must be amenable to judicial review; (ii) the act has to be of a kind that is open to challenge; (iii) the institution or person making the challenge must have standing to do so; (iv) there must be illegality of a type mentioned in Article 263(2); and (v) the challenge must be brought within the time limit indicated in Article 263(6). The UK version contains a further section analysing the relevance of legal challenge to EU norms in relation to the UK post-Brexit.

INTERPRETATION ISSUE OF THE PRINCIPAL PURPOSE TEST

The existence of tax treaties has raised a base erosion and profit shifting (BEPS) concern through the circumvention of the provisions of those treaties. Consequently, following the release of the BEPS Action 6 Final Report by the Organisation for Economic Co-operation and Development, the Principal Purpose Test (PPT) has been introduced as a general anti abuse rule (GAAR) for tax treaties. As a BEPS action minimum standard, the PPT clauses are considered sufficient to prevent tax treaty abuses. However, since there has been no sufficiently clear guidance to the PPT implementation, several interpretation issues seem to arise. This situation is likely to put uncertainties for both tax administrations and taxpayers. This article aims to provide a literature review of the PPT clauses interpretation so as to help them to further address such issues. The discussion focuses on 4 (four) main elements of the PPT, (1) the interpretation of the phrase “one of the principal purposes”; (2) the reasonableness element; (3) the object and purpose of the relevant treaty provision; and (4) the burden of proof of the PPT.

The Effects of Armed Conflicts on Investment Treaties

This chapter explores whether the outbreak of armed conflict could result in the termination or suspension of investment treaties. It critically inspects the International Law Commission’s codification project on the effects of armed conflicts on treaties, and argues that certain types of conflicts could result in the suspension of certain investment treaty provisions when warranted by security concerns. In addition, it considers the doctrines of supervening impossibility to perform and fundamental change of circumstances, and argues that the former, in particular, could justify the suspension of an investment treaty provision. However, such disruptions to treaty operation are limited to the most severe armed conflicts of the highest magnitude.

9. European Union law and institutions

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the framework and institutions of the European Union. It covers European Union Treaty framework since 1957; sources of EU law and their status after the UK leaves the European Union; the effect of leaving the European Union on the Charter of Fundamental Rights and Freedoms; failure to transpose a Directive into national law; the effect of leaving the European Union on the Francovich principle; breach of a Treaty provision by the national legislature; breach of a Treaty provision by the national administration; incorrect transposition of a Directive into national law; liability of judicial acts; the Lisbon Treaty and the procedure for withdrawal from the European Union under Art 50. This chapter also looks at the legislative process of withdrawal from the European Union including the European Union (Withdrawal) Act 2018.

6. The Free Movement of Persons: Key Principles

This chapter provides an overview of the principles which apply to the free movement of all persons. In order to benefit from the free movement rules, the claimant must fall within the personal, material, and territorial scope of the Treaty provision and, in addition, must be able to rely on the Treaty provision against the particular defendant (the principle of direct effect). The chapter then discusses the scope of the Treaty prohibition. It shows that, at least in principle, refusal of entry/deportation, discriminatory measures, and non-discriminatory measures which impede market access are all prohibited by the various provisions of the Treaty.