Search result: 101 articles

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Willem-Jan Verhoeven Ph.D.
Erasmus School of Law, Department of Criminology, Erasmus University Rotterdam.
Article

Access_open Tax Competition within the European Union – Is the CCCTB Directive a Solution?

Journal Erasmus Law Review, Issue 1 2014
Keywords tax competition, tax planning, European Union, Common Consolidated Corporate Tax Base, factor manipulation
Authors Maarten de Wilde LL.M
AbstractAuthor's information

    The author addresses the phenomenon of taxable profit-shifting operations undertaken by multinationals in response to countries competing for corporate tax bases within the European Union. The central question is whether this might be a relic of the past when the European Commission’s proposal for a Council Directive on a Common Consolidated Corporate Tax Base sees the light of day. Or would the EU-wide corporate tax system provide incentives for multinationals to pursue artificial tax base-shifting practices within the EU, potentially invigorating the risk of undue governmental tax competition responses? The author’s tentative answer on the potential for artificial base shifting and undue tax competition is in the affirmative. Today, the issue of harmful tax competition within the EU seems to have been pushed back as a result of the soft law approaches that were initiated in the late 1990s and early 2000s. But things might change if the CCCTB proposal as currently drafted enters into force. There may be a risk that substantial parts of the EU tax base would instantly become mobile as of that day. As the EU Member States at that time seem to have only a single tool available to respond to this – the tax rate – that may perhaps initiate an undesirable race for the EU tax base, at least theoretically.


Maarten de Wilde LL.M
LL.M, Researcher/lecturer, Erasmus University Rotterdam (<dewilde@law.eur.nl>), lecturer, University of Amsterdam, tax lawyer, Loyens & Loeff NV, Rotterdam, the Netherlands. This article was written as part of the Erasmus School of Law research programme on ‘Fiscal Autonomy and Its Boundaries’. The author wishes to thank the anonymous reviewers for their constructive comments on an earlier draft of this article.
Article

Access_open The Effect of 'Excessive’ Tax Planning and Tax Setting on Welfare: Action Needed?

Journal Erasmus Law Review, Issue 1 2014
Keywords tax planning, optimal taxation, tax competition, corporate taxation
Authors Hendrik Vrijburg Ph.D.
AbstractAuthor's information

    This article presents a literature review on the welfare effects of excessive company taxation practices. The article intends to structure the debate by sketching a conceptual framework of thought for the topic under consideration and places the existing literature within this framework. The article ends with a thought-provoking discussion between two extreme papers in the literature, one against tax planning and one in favour. The discussion is concluded by identifying the fundamental differences in assumptions underlying both approaches.


Hendrik Vrijburg Ph.D.
Assistant Professor, Erasmus School of Economics, Erasmus University Rotterdam and Tinbergen Institute, PO Box 1738, 3000 DR Rotterdam, The Netherlands, Phone: +31-10-408-1485, Fax: +31-10-408-9031, email: vrijburg@ese.eur.nl.
Article

Access_open How Law Manifests Itself in Australian Aboriginal Art

Journal Erasmus Law Review, Issue 3/4 2013
Keywords legal pluralism, native title, reconciliation, indigenous people of Australia, Aboriginal art
Authors Dr. Agnes T.M. Dr. Schreiner
AbstractAuthor's information

    The article How Law Manifests Itself in Australian Aboriginal Art will discuss two events at the Aboriginal Art Museum Utrecht from the perspective of a meeting between two artistic and legal cultures. The first event, on the art and law of the Spinifex people, will prove to be of a private law nature, whilst the second event, on the art and law of the Wik People, will show characteristics of international public law. This legal anthropological contribution may frustrate a pluralistic perspective with regard to the coexistence of Western law and Aboriginal law on the one hand and of Utrecht's Modern Art Museum and the presented Aboriginal Art on the other. It will show instead the self-evidence of art and law presented and their intertwined connection for the Aboriginal or indigenous peoples of Australia.


Dr. Agnes T.M. Dr. Schreiner
Agnes T.M. Schreiner studied Law and is Lecturer on several themes of the General Jurisprudence at the Law Faculty, University of Amsterdam, The Netherlands. Within the Masterprogram European Private law she teaches the course Anthropology of European Private Law. She received her Ph.D. in 1990. She has specialized in a series of subjects: Law & Media, Law & Arts, Law & Rituals, Law & Culture, Law & Semiotics and Law & Social Sciences.
Article

Access_open A Turn to Legal Pluralism in Rule of Law Promotion?

Journal Erasmus Law Review, Issue 3/4 2013
Keywords legal pluralism, rule of law promotion, legal reform, customary law, non-state legal systems, donor policy
Authors Dr.mr Ronald Janse
AbstractAuthor's information

    Over the past 25 years, international organizations, NGOs and (mostly Western) states have spent considerable energy and resources on strengthening and reforming legal systems in developing countries. The results of these efforts have generally been disappointing, despite occasional successes. Among donors, one of most popular explanations of this failure in recent years is that rule of law promotion has wrongly focused almost exclusively on strengthening the formal legal system. Donors have therefore decided to 'engage' with informal justice systems. The turn to legal plu‍ra‍lism is to be welcomed for various reasons. But it is also surprising and worrisome. It is surprising because legal pluralism in developing countries was a fact of life before rule of law promotion began. What made donors pursuing legal reform blind to this reality for so long? It is worrisome because it is not self-evident that the factors which have contributed to such cognitive blindness have disappeared overnight. Are donors really ready to refocus their efforts on legal pluralism and 'engage' with informal justice systems? This paper, which is based on a review of the literature on donor engamenet with legal pluralism in so-called conflict affected and fragile states, is about these questions. It argues that 7 factors have been responsible for donor blindness regarding legal pluralism. It questions whether these factors have been addressed.


Dr.mr Ronald Janse
Ronald Janse is Associate Professor of Law, University of Amsterdam, The Netherlands.
Article

Access_open At the Crossroads of National and European Union Law. Experiences of National Judges in a Multi-level Legal Order

Journal Erasmus Law Review, Issue 3/4 2013
Keywords national judges, legal pluralism, application of EU law, legal consciousness, supremacy and direct effect of EU law
Authors Urszula Jaremba Ph.D.
AbstractAuthor's information

    The notion and theory of legal pluralism have been witnessing an increasing interest on part of scholars. The theory that originates from the legal anthropological studies and is one of the major topical streams in the realm of socio-legal studies slowly but steady started to become a point of departure for other disciplines. Unavoidably it has also gained attention from the scholars in the realm of the law of the European Union. It is the aim of the present article to illustrate the legal reality in which the law of the Union and the national laws coexist and intertwine with each other and, subsequently, to provide some insight on the manner national judges personally construct their own understanding of this complex legal architecture and the problems they come across in that respect. In that sense, the present article not only illustrates the new, pluralistic legal environment that came into being with the founding of the Communities, later the European Union, but also adds another dimension to this by presenting selected, empirical data on how national judges in several Member States of the EU individually perceive, adapt to, experience and make sense of this reality of overlapping and intertwining legal orders. Thus, the principal aim of this article is to illustrate how the pluralistic legal system works in the mind of a national judge and to capture the more day-to-day legal reality by showing how the law works on the ground through the lived experiences of national judges.


Urszula Jaremba Ph.D.
Urszula Jaremba, PhD, assistant professor at the Department of European Union Law, School of Law, Erasmus University Rotterdam. I am grateful to the editors of this Special Issue: Prof. Dr. Sanne Taekema and Dr. Wibo van Rossum as well as to the two anonymous reviewers for their useful comments. I am also indebted to Dr. Tobias Nowak for giving me his consent to use the data concerning the Dutch and German judges in this article. This article is mostly based on a doctoral research project that resulted in a doctoral manuscript titled ‘Polish Civil Judges as European Union Law Judges: Knowledge, Experiences and Attitudes’, defended on the 5th of October 2012.

Wibo van Rossum

Sanne Taekema
Article

Access_open An Eclectic Approach to Loyalty-Promoting Instruments in Corporate Law: Revisiting Hirschman's Model of Exit, Voice, and Loyalty

Journal Erasmus Law Review, Issue 2 2013
Keywords Eclecticism, corporate law & economics, corporate constitutionalism, loyalty-promoting instruments
Authors Bart Bootsma MSc LLM
AbstractAuthor's information

    This essay analyses the shareholder role in corporate governance in terms of Albert Hirschman's Exit, Voice, and Loyalty. The term 'exit' is embedded in a law & economics framework, while 'voice' relates to a corporate constitutional framework. The essay takes an eclectic approach and argues that, in order to understand the shareholder role in its full breadth and depth, the corporate law & economics framework can 'share the analytical stage' with a corporate constitutional framework. It is argued that Hirschman's concept of 'loyalty' is the connecting link between the corporate law & economics and corporate constitutional framework. Corporate law is perceived as a Janus head, as it is influenced by corporate law & economics as well as by corporate constitutional considerations. In the discussion on the shareholder role in public corporations, it is debated whether corporate law should facilitate loyalty-promoting instruments, such as loyalty dividend and loyalty warrants. In this essay, these instruments are analysed based on the eclectic approach. It is argued that loyalty dividend and warrants are law & economics instruments (i.e. financial incentives) based on corporate constitutional motives (i.e. promoting loyalty in order to change the exit/voice mix in favour of voice).


Bart Bootsma MSc LLM
PhD candidate in the corporate law department at Erasmus School of Law, Erasmus University Rotterdam. Email: bootsma@law.eur.nl. The research for this article has been supported by a grant from the Netherlands Organisation for Scientific Research (NWO) in the Open Competition in the Social Sciences 2010. The author is grateful to Ellen Hey, Klaus Heine, Michael Faure, Matthijs de Jongh and two anonymous reviewers for their constructive comments and suggestions. The usual disclaimer applies.
Article

Access_open Offer and Acceptance and the Dynamics of Negotiations: Arguments for Contract Theory from Negotiation Studies

Journal Erasmus Law Review, Issue 2 2013
Keywords Contract Formation, Offer and Acceptance, Negotiation, Precontractual, UNIDROIT Principles of International Commercial Contracts
Authors Ekaterina Pannebakker LL.M.
AbstractAuthor's information

    The doctrine of offer and acceptance forms the basis of the rules of contract formation in most western legal systems. However, if parties enter into elaborate negotiations, these rules may become difficult to apply. This paper addresses the application of the doctrine of offer and acceptance to the formation of contract in the context of negotiations. The paper argues that while the doctrine of offer and acceptance is designed to assess the issues related to the substance of the future eventual contract (the substantive constituent of negotiations), these issues overlap within the context of negotiations with the strategic and tactical behaviour of the negotiators (dynamic constituent of negotiations). Analysis of these two constituents can be found in negotiation studies, a field which has developed over the last decades. Using the rules of offer and acceptance of the UNIDROIT Principles of International Commercial Contracts as an example, this paper shows that the demarcation between the substantive and the dynamic constituents of negotiations can be used as the criterion to distinguish between, on the one hand, the documents and conduct forming a contract, and, on the other hand, other precontractual documents and conduct. Furthermore, the paper discusses the possibility of using the structure of negotiation described by negotiation studies as an additional tool in the usual analysis of facts in order to assess the existence of a contract and the moment of contract formation.


Ekaterina Pannebakker LL.M.
PhD candidate, Erasmus School of Law, Erasmus University Rotterdam. I thank Sanne Taekema and Xandra Kramer for their valuable comments on the draft of this article, and the peer reviewers for their suggestions. The usual disclaimer applies.

Klaus Heine

Nathan Betancourt

Barbara Krug
Both authors are affiliated with the Rotterdam School of Management, Erasmus University Rotterdam, PO Box 1738, 3000 DR, Rotterdam, The Netherlands, nbetancourt@rsm.nl, bkrug@rsm.nl.

Carel Smith
Senior Lecturer Legal Theory, Leiden University.

Simon Deakin
Centre for Business Research and Faculty of Law, University of Cambridge. E-mail: s.deakin@cbr.cam.ac.uk.

Daniel Schwarcz
Associate Professor of Law, University of Minnesota Law School. A version of this paper, titled Insurance Demand Anomalies and Regulation, was simultaneously published in the Journal of Consumer Affairs. For helpful comments and suggestions, I thank Ken Abraham, Tom Baker, Oren Bar-Gill, Prentiss Cox, Brenda Cude, Kristin Hickman, Claire Hill, Bert Kritzer, Brett McDonnell, Amy Monahan, Francesco Parisi, Arden Rowell, Steven Schwarcz, Peter Siegelman and Paul Slovic. I also thank the participants in Erasmus Law School's conference on Juxtaposing Autonomy and Paternalism in Private Law, the University of Minnesotas seminar on Alternative Perspective on Law and Economics and the National Bureau of Economic Research's Insurance Project Workshop. Christina Alexander and Carl Engstrom provided excellent research assistance.
Article

Access_open Merger control and the rule of law

Journal Erasmus Law Review, Issue 1 2009
Authors Rachid Abdullah Khan and Gareth Davies
Author's information

Rachid Abdullah Khan
Both authors are members of the Department of International Law, Faculty of Law, VU University Amsterdam (Vrije Universiteit Amsterdam); Rachid Abdullah Khan as an associate professor and Gareth Davies as a professor.

Gareth Davies
Both authors are members of the Department of International Law, Faculty of Law, VU University Amsterdam (Vrije Universiteit Amsterdam); Rachid Abdullah Khan as an associate professor and Gareth Davies as a professor.

Siri Gloppen
Professor of Comparative Politics, University of Bergen and Head of the Courts in Transition research programme at the Chr. Michelsen Institute, Bergen, Norway. The author would like to thank Ole Frithjof Norheim, Bruce M. Wilson and the anonymous referees for constructive comments.

Abiola O. Makinwa
Abiola Makinwa is a doctoral candidate at the Department of Private International and Comparative Law, Faculty of Law, Erasmus University Rotterdam. The author would like to thank Professor Nicholas Dorn for his comments on the first draft of this paper. The usual disclaimer applies.

Hjalmar van Marle
Hjalmar van Marle is Professor of forensic psychiatry at the Erasmus University Medical Centre and at the School of Law of Erasmus University Rotterdam, the Netherlands.

Alessandra Arcuri
Dr. Alessandra Arcuri is Assistant Professor, Rotterdam Institute of Law and Economics (RILE), Department of International Law, School of Law, Erasmus University Rotterdam. Email: acuri@frg.eur.nl. The author wishes to thank an anonymous referee, Giuseppe Dari-Mattiacci and the editorial board of the Erasmus Law Review for thoughtful comments; the usual disclaimer applies.

Roberto Pardolesi
Roberto Pardolesi is Professor of Comparative Law and Private Law at the Guido Carli University of Rome.

Bruno Tassone
Bruno Tassone is Attorney in Rome, Professor of Civil Law Torts at the Guido Carli University of Rome and Professor of Copyright Law at the University of Terano.
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