Band 7, Heft 2

There are two ways that the negligence rule is interpreted. Under one interpretation a negligent injurer is liable for the entire harm to the victim; and under the other interpretation a negligent injurer is liable only for that part of the harm which can be ascribed to his negligence. Both these versions are efficient. However, if there is uncertainty regarding whether the court will be employing the full liability version or the incremental liability version for determining the liability of a negligent injurer, notwithstanding the fact that both the versions are efficient, inefficiency is possible. It is shown in the paper that a necessary and sufficient condition for efficiency in all cases is that the subjective probability with which the injurer expects the standard version to be employed must be greater than or equal to the subjective probability with which the victim expects the standard version to be employed. For the subset of applications without complementarities in the cares of the two parties and which are such that the total social costs are minimized at a unique care-configuration, it is shown that efficiency obtains regardless of the subjective probabilities with which the parties expect the two versions. One very important conclusion that emerges from the analysis of this paper is that when courts employ more than one liability rule, even if all the employed rules are efficient, the efficiency of all outcomes cannot be taken for granted merely on the ground of the efficiency of the employed rules.

India is considered as one of the countries with a stringent body of labour laws. Though there is no lack of pro-worker employment protection legislation (EPL) and contract labour laws, the vulnerabilities of workers seem to be increasing rapidly in this neo-liberal phase of the global economy. Over the past two decades, there has been a rising trajectory of in-formalisation even in the organised manufacturing sector. Under this backdrop, we study the in-formalisation of migrant labour and try to find out whether EPL does protect the interests of migrant workers. We found that in-formalisation of migrant workers are higher in the states with relatively stringent labour laws. The finding of our econometric analysis indicates that informal migrant labour is used to evade the social security provisions laid down under the Industrial Disputes Act, 1947 among other legislation. Since informal workers fall outside the purview of most of the pro-workers labour laws, the trajectory of in-formalisation is likely to have serious repercussions on the welfare of workers especially that of migrants. Migrant labour, which occupies a substantive role in the contemporary labour markets, must be brought into an apt regulatory framework to address its vulnerabilities.

Sovereign wealth funds (SWFs) have been rapidly redefining the traditional paradigms, providing both much-needed capitals as well as posing particular challenges for policy makers. The role of SWFs, which are becoming increasingly involved in the global financial markets, has often been underestimated in the discourse of the protection of human rights. The tâtonnement processes of bargaining between home and host countries of SWFs indicate that the concern regarding human rights has maintained a sensible balance between protecting the rights of individuals and the benefits that large capital investments offer for both host and home countries. The challenge still remains as to whether the presumption that the promotion of SWFs investment is going to retard the promotion of human rights would not be rebutted even in terms of the new global regulatory framework.

This article provides an overview of the concept of the traditional qusai-definitions of treaty shopping in an attempt to delineate the outline of such practices. This article also consider the current trends in treaty shopping and the anti-treaty shopping policies in the context of tax treaties, OECD Model Convention, US tax policy and domestic legislation, and its interaction with other domestic anti-abuse rules and judicial doctrines, focusing on recent cases on beneficial ownership. Lastly, this article examines the possible implications of Korean Law on the treaty shopping debate. From a global perspective, specific guidance is needed to harmonize how jurisdictions apply the concept of “beneficial owner” to holding companies. Since the tax authorities throughout the world often refer to OECD Commentary when interpreting Double Tax Conventions, it is critical that the concept of “beneficial owner” be clear and concise so as to avoid confusion and misinterpretation. It should be also noted that the verification of beneficial ownership requirement should be made on a factual basis, to avoid treaty shopping and treaty abuse as it is difficult to establish a general rule.

This paper develops an economic model to explain how societies make decisions about criminal law based on efficiency. The scope of criminal law depends on activities considered harmless or harmful. Besides different scope of criminal law, different societies can also have different punishments for certain kinds of crimes. This divergence stems from the relative importance of factors that societies consider in optimizing social loss from criminal activities. These factors are: the harmfulness of the crime, retributive or regretful emotions towards offenders or what is called “humanity of punishment” and the deterrent effect of certain punishments. Different attitudes towards these aspects lead to differences in criminal law. Once sources of divergence have been identified, the key question is who decides the above features? The answer depends crucially on the political constitution of the society. In authoritarian systems, the central planner formulates the criminal law; in democratic systems “public opinion” can have different degrees of influence. The most common style in forming criminal justice policies in advanced democracies is “insulated delegation” or “professionalization of punishment,” in the hands of the academic elite.