Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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Labor Activism Brings Spotlight to Freedom of Speech

Daniel Huchla

Have you ever wondered how your food is made?  More specifically, have you ever wondered if your food is produced ethically? There is one approach that aims to promote compliant business.[i]  The second approach is to expose unethical business practices through investigative journalism. For attempting to expose allegedly unethical practices Andy Hall faced the prospect of up to seven years in prison on the basis of the Thai law of defamation. What about freedom of speech and the press? Using U.S. law as a model, Thailand should modify its law to eliminate the possibility of criminal liability for defamation.

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Photo Credit: Kevin Casper – Public Domain Pictures

 

Andy Hall, a British lawyer and academic, collaborated with Finnwatch, a Non-Governmental Organization based in Finland, as a researcher on labor standards in the Food Industry in Thailand.[ii]  This venture resulted in the 2013 publication “Cheap Has a High Price”, exposing immigration and labor issues related to specific producers of tuna and pineapple products in Thailand.[iii]  As a result, Natural Fruit Company Ltd. lost business and brought suit against Andy Hall in Thailand alleging defamation.[iv]  During the course of the multiyear litigation there was a degree of public outcry from elements of the international community on Andy Hall’s behalf.[v] On September 20, 2016, the Bangkok South Criminal Court found Andy Hall guilty of criminal defamation and cybercrimes.[vi]  Hall received a suspended three year sentence and a 150,000 baht ($4,300) fine.[vii]  But, civil liability still looms in the distance, especially if Thailand follows res judicata, by which Hall could be precluded from arguing his civil liability since he has already been found criminally liable, which presumably has a higher standard of proof.[viii]

 

As a  sovereign nation, Thailand has control over the laws and their application within its borders. The issue of domestic sovereignty echoes the common phrase “When in Rome do as the Romans do.”[ix] Under Thai law, defamation can result in criminal and civil liability.[x] Criminal defamation is defined as “imput[ing] anything to the other person before a third person in a manner likely to impair the reputation of such other person or to expose such other person to be hated or scorned.”[xi] Because Mr. Hall’s work was published online (albeit in Finnish), he was additionally subjected to liability under the Computer Penal Code, which has stiffer penalties.[xii]

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Photo Credit: MBogdan – Mary’s Rosaries

Thailand does allow defenses in actions for defamation. A defendant may prove the truth of his statement, or if the plaintiff is a “subject of public criticism” the defendant may assert the statement was a “fair comment” made in “good faith.”[xiii]  In the case of Andy Hall it is uncertain where the gap exists that the defense of truth was unsuccessful. But, there has been criticism regarding the limited sample size for interviews, leading one to believe that the facts may not be inherently false, but just overgeneralized.[xiv]  That this is sufficient to find liability is an unfortunate byproduct of a system that places the burden upon the defendant to prove truth.

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What if Andy Hall had investigated a company in the United States instead? Under United States law, the company as Plaintiff would have to show that a false statement was made.[xv]  Changing the burden of proof in this instance would have drastic effect. If the publication was just overgeneralized, it would be equally difficult to prove the statement was false in the United States as it was to prove that it was true in Thailand. Even if the company were able to prove the statement to be false there are further protections for speech in the United States. Depending on whether the company is considered private or public, they would additionally be required to show either negligence or knowing culpability (“actual malice”) on behalf of Mr. Hall.[xvi] With all these protections, Mr. Hall likely would not have been found civilly liable for defamation in the United States. Within the U.S., there are several states that allow for criminal liability for defamation; but, these laws are confined by the same robust protections as civil defamation.[xvii]

However, these protections have not always existed in the United States. The law of defamation has evolved massively over the past sixty years in the United States. Prior to 1964, defamation allowed for per se liability.[xviii] Under this system, falsity was the only thing that needed to be proved.[xix] We don’t have to look very far in United States history for some level of liability to be foreseeable. This change additionally reflects that legal reform is possible and valuable.

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Going forward, what should be the reform priorities on this issue in Thailand? Ideally, the burden of proof should be shifted from the Defendant to the Plaintiff. Placing the burden upon the defendant can have a chilling effect on speech. The burden of proof coupled with criminal responsibility for defamation is guaranteed to limit speech. In this regard, Andy Hall is just the tip of the iceberg; a Thai woman is facing similar criminal charges for attempting to bring light to the alleged graphic murder of her relative.[xx]

Daniel Huchla is a third year law student at the University of Baltimore and a graduate of Miami University with a Bachelor of Music. During his undergraduate studies, he performed in an International Opera Festival located in Brazil. He also serves as Associate Managing Editor for the University of Baltimore Law Review. Areas of interest include Administrative Law, International Humanitarian Law, International Criminal Law, and National Security Law. He is currently a Law Clerk with the Law Offices of McCabe, Weisberg & Conway.

[i] http://fairtradeusa.org/about-fair-trade-usa/mission

[ii] http://www.finnwatch.org/en/news/408-andy-hall-found-guilty-in-a-shock-ruling-by-bangkok-court

[iii] http://www.bbc.com/news/world-asia-37415590

[iv] Id.

[v] See e.g. https://www.walkfree.org/andy-hall/

[vi] BBC, supra note iv.

[vii] Id.

[viii]  Finnwatch, supra note iii; see e.g. Taylor v. Sturgell, 553 U.S. 880 (2008).

[ix] http://www.phrases.org.uk/meanings/when-in-rome-do-as-the-romans-do.html

[x] See Finnwatch, supra note iii.

[xi] https://www.samuiforsale.com/law-texts/thailand-penal-code.html#325

[xii] https://www.samuiforsale.com/law-texts/computer-crime-act.html

[xiii] http://kellywarnerlaw.com/thailand-defamation-laws/

[xiv] http://www.dw.com/en/rights-activist-andy-hall-sentenced-for-defaming-thailand-fruit-company/a-19562755

[xv] See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986); 1 Law of Defamation § 5:13 (2d ed.).

[xvi] 1 Law of Defamation § 1:34 (2d ed.)

[xvii] http://www.firstamendmentcenter.org/criminal-libel-statutes-state-by-state

[xviii] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[xix] Id.

[xx] http://www.prachatai.com/english/node/6590

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Burkini & Beachside Oppression: Islamophobia Wave Hits France

J. Michal Forbes

Warm sand, clear blue skies and a seamlessly endless ocean. France’s beaches along the Mediterranean have been known as some of the most beautiful beaches in the world, as well as some of the sexiest.  Whether it’s Cannes or Saint-Tropez, visitors expect the same things from French’s shores—sunlight, small swimsuits and sexy women. Then along came the burkini, which to some, threatened France’s cultural beach identity.

Last month, amidst much international scrutiny and speculation, over 30 French towns banned the burkini from their shores.[i] The first question that comes to most people’s mind is what exactly is a burkini.  Designed by Australian Aheda Zanetti, the burkini is a custom swimsuit designed specifically for Muslim women who adhere to the Islamic tradition of dressing modestly.[ii]  The burkini resembles a full body suit and covers the whole body with the exception of the swimmer’s face, hands and feet.

 

Within a matter of hours, the ban on burkinis took social media by storm and suddenly the entire world was looking at France’s shores. French Premier Manuel Valls even supported the towns that wanted to ban the burkinis claiming that France’s beaches should be “free of wardrobe associated with religion and politics”.[iii] He also said the burkini is “an expression of a political project, a counter-society, based notable on the enslavement of women.” Social scientists around the world even chimed in, alleging that the ban was not about swimwear, but about protecting France’s non-Muslim majority from having to confront a changing word and protecting Muslim women from patriarchy. [iv]

France’s ban on burkinis, did not last however. In matter of a few weeks, France’s highest courts held that mayors do not have the right to ban burkinis.[v] Since 1905, the French government has practiced laïcité, under which the government does not recognize any kind of religious influence in governmental affairs. The current ban on burkinis was seen by some as a violation of laïcité, and the government’s interface in religious affairs.

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The question arises: is the ban on burkinis really an attempt to maintain and cultivate the culture of France’s shores? It may have been originally, but around the world many critics see it as France’s latest attempt to suppress the Islamic faith within its country.  In light of the recent terrorist attacks in Nice this past summer, the ban, which was enacted weeks later, is more like Islamophobia masked as cultural preservation.

The ban on the burkinis was nothing more than a push to further ban Islamic garments. A movement that first began in 2004, when the French government previously banned Muslim headscarves (hijabs) from schools. Then again, in 2011, when France became the first European country to ban wearing in public the burqa, a full-body covering that includes a mesh over the face, and the niqab, a full-face veil with an opening for the eyes. Though the ban was ultimately upheld by the European Court of Human Rights in 2014, debate still occurred across the world whether or not this constituted religious oppression. This burkini ban is just the latest law enacted to suppress Islam within France.

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The debate surrounding the Ban on Burkinis is far from over. This issue will likely reemerge in the next French presidential election slated for 2017. There is no doubt that the issue of keeping France “homogenous “will be at the forefront.  Once again, burkinis may be banned from France’s shores.

 

If the ban on burkinis becomes national law in France where does religious oppression stop? Will nuns be prohibited from wearing coif? Perhaps priest will be prohibited from wearing clerical collars? However in a country where Catholics make up almost 88% of the population those bans are likely not to happen.[vi] The real issue is Islam and Islamophobia within France.  France’s attempts to remain homogeneous in a world that is multicultural could lead to negative implications for France. And to think, the ban on burkinis was the spark that started the fire.

 

J. Michal Forbes is a proud native of Prince George’s County, Maryland, Ms. Forbes has a fiery passion for international law, travel and frozen yogurt. After receiving her B.A. in Political Science from the University of Maryland, Baltimore she taught ESOL in the Washington, D.C. Metropolitan area before joining the US Peace Corps in 2011. Ms. Forbes served in the Peace Corps in Ukraine from 2011 to 2013, in a small town between the Red Sea and the Black Sea in Crimea. Fluent in Russian, Ms. Forbes soon caught the travel bug and traveled/worked extensively throughout Eastern Europe during her 27 month commitment. Currently a 3L, Ms. Forbes is a member of the International Law Society, Immigration Law Society, Black Law Student Association and the Women Lawyers as Leaders Initiative. She has worked for Maryland Legal Aid and the NAACP’s Office of the Attorney General. She was recently awarded the honor of being named Article Editor with the University of Baltimore Law Forum, a scholarly legal journal focused on rising issues in Maryland. It is her dream to work for the U.S. government assisting with asylum seekers and refugee. In her free time, Ms. Forbes enjoys eating frozen yogurt with her husband and learning Arabic.

 

[i] http://www.cnn.com/2016/08/24/europe/woman-burkini-nice-beach-incident-trnd/

[ii] The Surprising Australian origin of the ‘burkini’, https://www.washingtonpost.com/news/worldviews/wp/2016/08/17/the-surprising-australian-origin-story-of-the-burkini/

[iii] Manuel Valls: Burkini ‘not compatible’ with French values, http://www.politico.eu/article/manuel-valls-burkini-not-compatible-with-french-values/

[iv] France’s ‘Burkini’ Bans Are About More Than Religion or Clothing, http://www.nytimes.com/2016/08/19/world/europe/frances-burkini-bans-are-about-more-than-religion-or-clothing.html?_r=0

[v] French court suspends burkini ban, http://www.cnn.com/2016/08/26/europe/france-burkini-ban-court-ruling/

[vi] The Church in Decline: France’s Vanishing Catholics, http://www.ibtimes.com/church-decline-frances-vanishing-catholics-1125241


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A Comparative Look at Off-Label Pharmaceutical Use

Jasen Lau

On December 2012, the Second Circuit of the U.S. ruled in favor of the defendant in U.S. v. Caronia, stating that the non-misleading speech of off-label[1] promotion by a pharmaceutical representative is protected by the First Amendment. The case drew nationwide attention by pharmaceutical companies, public health scholars, government officials, and health lawyers. Many worried that First Amendment protections trumped public safety in off-label promotion. While the actual ramifications are debatable, Caronia certainly warrants further inquiry. After all, the U.S. is not the only country where off-label prescription and promotion of medications take place. From France to Germany to Japan to India, off-label prescriptions and policies thereof exist, and while most of the policies are similar on the overarching principles, the subtle nuances reflect an ulterior motive that may or may not be noble. Many nations of the world have different yet very similar approaches to off-label prescription use regulation.

The Caronia case arose out of the promotion of a drug called Xyrem, a very powerful central nervous system depressant.[2] The Food and Drug Administration (FDA) deemed the medication’s side effects so severe that the drug warranted a black box warning, the most serious kind of warning the FDA may give.[3] Caronia and Dr. Peter Gleason, representatives for Xyrem’s manufacturer, promoted an off-label use; Gleason said he personally treated patients far younger and older than the approved scope of use. However, the court found that the actual speech of the off-label promotion is protected. In the U.S., off- label promotion is not inherently illegal, but off-label promotion may be used as evidence of misbranding, which is illegal.[4] However, the U.S. does not entirely prohibit all kinds of off-label promotion. In fact, the system is set-up such that pharmaceutical manufacturers may fund research that helps find new off-label uses. The manufacturers may then disseminate the research results.[5] Many concerns arise from Caronia’s ruling: manufacturers will start promoting, while disregarding  public safety; research will no longer be funded; the FDA will be limited in power, and so forth. However, the U.S. is not the only country to tackle the issue of off-label prescription use.

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Off-label use is not a rare phenomenon and nor is it exclusive to the U.S. In fact, off-label use is a very common medical technique used to treat numerous patients worldwide. In Paris, a statistical study suggests that nearly 62% of prescriptions are for an unauthorized use.[6] In the first quarter of 1999, nearly 13% of all prescriptions for children and adolescents in Germany were prescribed off-label.[7] Similarly, 22 German medical centers said off-label use was “common” for a vast majority of the physicians.[8] In Spain, 61% of pediatric physicians prescribe for medications in an off-label manner.[9] 

Yet, how each nation regulates off-label use and the public policies that stem therefrom differ in only the subtlest of ways.The European Union (EU) has established a general policy for off-label use; drugs should be approved and authorized for specific treatments. However, the EU also believes that its Member States should incentivize further research. One possible incentive is a six-month extension to a Supplementary Protection Certificate,[10] extending a manufacturer’s exclusive property rights.[11]  Second, the manufacturer is granted an extra two years of market exclusivity if research is done on a drug that affects less than 5 in 10,000 patients or has become a drug where, without incentives, no pharmaceutical company would want to conduct further research for lack of a justification to the necessary investment of research but the drug still holds potential to treat a condition that otherwise cannot be treated with alternative medicines – also called an orphan drug.[12] The EU did not want “rigid and compelling legal regulations” but a system of incentives to nurture the desire for research over penalizing the lack thereof.[13] This desire stems from the need for pediatric research. Nearly 21% of the EU’s population – nearly 100 million – are vulnerable children with inadequate drug supply.[14] In fact, 50% of medications were never even tested for children before becoming orphan drugs.[15] However, many of the Member States are silent on the issue of off-label prescription in their legislation, relying mostly on the EU. On the other hand, France has a very specific approach that defies the EU’s principles.

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In France, a manufacturer may apply for a “temporary recommendations for use” (RTU) application with the Agence Nationale de Sécurité du Médicament et des Produits de Santé (ANSM). A RTU allows manufacturers to promote a current drug for an off-label use for 3 years. However, this approval is a contractual relationship; upon approval, the manufacturer is legally obligated to scientifically observe and evaluate the affected population.[16] To obtain a RTU, the manufacturer must prove that no other viable treatment for a current disease except for the off-label use of the drug in question.[17] This approach places the burden on the manufacturer, with much less incentive than the EU’s approach. Yet, there are other approaches in the world warrant further analysis. For example, in India, off-label use of any kind is strictly prohibited without exception.[18] In Japan, if the medication is for certain diseases, it can be approved for off-label use without the “preliminary clinical evidence of [the drug’s] effectiveness.”[19] So, approaches vary greatly between nations.

More importantly, the underlying policy behind these regulations – or lack thereof – must be assessed. In the U.S., the ability to prescribe for off-label use is a necessary “corollary of the FDA’s mission to regulate pharmaceuticals.”[20] The goals of pharmaceutical regulation are to protect the public safety, ensure a drug benefits specific patients groups as well as the overall population, and ensuring justice and equity in patients’ access to safe and effective drugs.[21] The regulation of drugs is specifically to ensure that physicians know that off-label use is prescribing a drug for a use that the “regulatory body has not stated is safe and effective.”[22] While these are very noble goals, a nation must not forget that off-label use is integral in medicine since many market drugs have no labeling or approved uses for specific populations.[23] For example, in Calabria, “less than 15%” of all the drugs on their market are meant for children on the basis of clinical trials.[24] While many people also fear off-label use for its inherent risks, the use of medicine is always a balancing act of benefit vs. risk. The FDA’s drug approval process requires drugs to be “safe and effective,” with the definition of safety changing on a case-by-case basis.[25] Drugs cannot always be completely void of risks, which is why a balancing act is necessary. However, if all off-label use is prohibited (as it is in India)  or, arguably, greatly stifled (like in France), then it is impossible to do a risk-benefit analysis since there is no chance to know of the benefits.[26] Therefore, a careful analysis of which underlying principle to adopt is necessary.

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The EU’s incentive approach certainly drives more research because there is seldom a greater incentive than financial. However, France’s approach to patient safety and care – while noble – places a greater burden on drug manufacturers without necessarily promising greater investment returns. However, if patient safety were the only concern, perhaps India’s approach to absolute prohibition would be the best, forcing manufacturers to conduct research for each and every possible use. Yet, Japan’s take could also allow much needed access to medications that would otherwise be either unavailable or not covered by insurance.[27] In the U.S., the approach is to allow research funding but not off-label promotion directly by the manufacturer. Each nation has a specific approach but what is truly at hand is the underlying idea of why each regulation is – or is not – viable. Indeed, it is a balancing act between the public safety, the preservation of regulatory authority, incentivizing research, keeping the manufacturers liable, and ensuring patient access to much needed drugs. Certainly, there is no one true answer – merely a set of ideas that should be adopted only after a nation knows what would be best for its people.

Jasen Lau is a third year law student at the University of Baltimore School of Law. He graduated from the University of Maryland in 2013 with a Bachelor of Arts in English. Jasen took it upon himself to become a certified pharmacy technician and studied several continuing education credits that focus on Medicare Fraud and Abuse prevention, HIPAA privacy and security laws, and ethics in the pharmacy workplace. Jasen has long been in the health care field either working directly with patients or as an assistant to providers. During that time, his obsession with working in health care has grown into policy analysis and counseling. Along with being a CICL fellow, he is also a law clerk for Johns Hopkins Hospital.

[1] The term “off-label” is defined as any use that is not authorized by the FDA.

[2] U.S. v. Caronia, 703 F.3d. 149 (2012) (Xyrem’s active ingredient is gamma-hydroxybutyrate more commonly known as the “date rape drug”).

[3] Id. at 155.

[4] 21 U.S.C. § 355.

[5] Mariestela Buhay, Off-Label Drug Promotion Is Lost in Translation: A Prescription for A Public Health Approach to Regulating the Pharmaceutical Industry’s Right to Market and Sell Its Products, 13 J. Health Care L. & Pol’y 459, 488 (2010).

[6]Christian Lenk & Gunnar Duttge, Ethical and legal framework and regulation for off-label use: European perspective, 10 Therapeutics and Clinical Risk Mgmt. 537 (2014).

[7] Id.

[8] N. Ditsch, et al., Off-label use in germany – a current appraisal of gynaecologic university departments, 16 European J. Med. Res. 7 (2011) (22 medical centers responded to a questionnaire, and of those physicians who responded, 91% said they commonly prescribed off-label use medications).

[9] Roi Piñeiro Pérez, Results from the 2012-2013 paediatric national survey on off-label drug use in children in Spain (OL-PED study), 81 Anales de Pediatría (English Edition) 16 (2014).

[10] Lenk, supra.

[11] REGULATION (EC) No 1901-2006 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2006 on medicinal products for paediatric use and amending Regulation (EEC) No 1768-92, DIrective 2001/20/EC, Directive 2001/83/EC and Regulation (EC) No 726-2004, Official Journal of the European Union, Dec. 27, 2006, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:378:0001:0019:en:PDF.

[12] REGULATION (EC) No 141/2000 OF THE EUROPEAN PARLIMENT AND OF THE COUNCIL of 16 December 1999 on orphan medicinal products, Official Journal of the European Communities, Jan. 22, 2000, http://ec.europa.eu/health/files/eudralex/vol-1/reg_2000_141/reg_2000_141_en.pdf

[13] Id.

[14] Id.

[15] Id.

[16] Lenk, supra.

[17] Joseph Emmerich, et al., France’s New Framework for Regulating Off-Label Drug Use, 367 New Eng. J. Med. 1279 (2012)

[18] Sukhvinder Singh Oberoi, Regulation off-label drug use in India: The arena for concern, 6 Persp. In Clinical Res. 129 (2015).

[19] Id.

[20] 124 Am. Jur. Trials 487 (Originally published in 2012).

[21] Lenk, supra.

[22] Id.

[23] Oberoi, supra.

[24] Francesca Saullo, et al., A questionnaire-based study in Calabria ont he knowledge of off-label drugs in pediatrics, 4 J. Pharmacology * Pharmacotherapeutics 51 (2013).

[25] 2013 Aspatore Special Rep. 5.

[26] Oberoi, supra.

[27] Ditsch, supra; Pérez, supra; see also E. L. Trimble, et al., International models of investigator-initiated trials: implications for Japan, 23 Annals of Oncology 3151 (2012) (In all nations, unless some form of off-label use is either properly documented or approved, the state health insurance will not cover the medication).


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Faux-Pas Fashion “Caveat Emptor”: Let The Buyer Beware

Kia Roberts Warren

Growing up in one of the fashion capitals of the world (NYC), I am, admittedly, a bit of a fashionista. I learned at a very young age that if you go down to Canal Street and enter a store looking for a Chanel boy bag that someone will take you to the small back room or a van filled with every designer name imaginable. This is the second oldest profession: counterfeiting. Many consumers believe that these counterfeiters are doing a service because consumers do not want to pay an exorbitant price for the real thing. However, counterfeiting is not a victimless crime.

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A counterfeit is a trademark infringement, a manufactured good being passed off as an original under the trademark.[1] This is harmful to luxury brands because their trademark is their business. Luxury brands rely on their trademarks to attract consumers and the brand mark signals to consumers the high quality of their products. Counterfeiting hurts the economy. The United States economy loses up to $250 billion in sales each year and 750,000 jobs lost.[2] In 2015, the EU economy reported a value 9.7% of their total sales every year or $28.7 billion and 363,000 jobs lost.[3]KRW Blog2_Photo2

Counterfeiting is a $600 billion industry and represents 5-7% of total world trade.[4]  And, these numbers are only increasing due to modern technology and the Internet. Because consumers can now shop within their own homes, counterfeit sales are on the rise because companies cannot watch the internet 24/7 looking for counterfeit sites [5] In 2007, for example, $119 billion worth of knock-off merchandise were purchased on the web.[6]

If clothing does not interest you like it does me, just know that more than clothing and handbags are counterfeited. Counterfeits have spread to toys, electronics, cosmetics, and pharmaceuticals,[7] many of which are sold through legitimate retail stores and websites.[8] These are public safety issues; these counterfeits are made with hazardous materials to the environment and to people’s health. Counterfeit luxury goods, also, have serious criminal ramifications that are not known to most consumers.

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Shakil Khan, 10, has worked for 4 months in a garment factory in Old Dhaka, making money for his impoverished family in Chandpur, Bangladesh. Nafeesa Binte Aziz/Toronto Star

Counterfeit luxury goods aren’t just hurting the economy, but promote child labor exploitation, human trafficking, drug trafficking, and even terrorism as well as other civil, criminal, and administrative crimes.[9] A Vietnamese crime gang leader earned $13 million selling counterfeit watches in New York.[10] Children, as young as six, are treated to excessively cruel and criminal treatment.[11] Forced laborers are smuggled into the country with the products to sell them and to place the finishing touches on the goods after getting across the borders.[12] There have been reports of authorities uncovering operations where proceeds from drug trafficking were channeled into counterfeiting and, vice versa, where profits from the sale of counterfeit goods were used to further other illicit operations.[13] The FBI has evidence that the World Trade Center 1993 bombing was financed with counterfeit luxury goods on Canal Street.[14] In 1996, the FBI found that followers of Sheik Omar Abdel Rahman, a blind cleric who was sentenced to 240 years in prison for plotting to bomb New York City landmarks, had made millions of dollars selling counterfeit t-shirts bearing Nike and Olympics logos.[15]

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So what can be done to protect fashion maisons and stop crime? Louis Vuitton employs about 40 lawyers, 250 independent investigators, and spends over $20 million each year to fight counterfeiting of its products.[16] Fashion maisons also turn to MarkMonitor (a corporation that accesses data and detects unauthorized channels and shuts them down) for help.[17] Of course, all of these costs get passed on to the consumer. There are also national laws in place. For example, the U.S. enacted the Lanham Act and Copyright Act of 1976.[18] In France, consumers can be forced to pay a costly fine and possible jail time for owning a counterfeit.[19] This idea is catching on in Italy and Britain as well. The European Union has placed two new regulations dealing with counterfeits.[20] On the international level there is International Anti-Counterfeiting Coalition (IACC), Office for Harmonization in the Internal Market, Anti-Counterfeiting Group, International Intellectual Property Alliance. The World Trade Organization has its members sign the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement.[21]

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In 2008, Louis Vuitton sued eBay in a French court. The French court ruled that eBay did not do enough to prevent the counterfeit sales from occurring on the site and eBay was ordered to pay $60.8 million in damages.[22] In a UK court, Cartier and Montblanc were recently granted orders ruling Internet providers to block websites selling counterfeit watches under their trademark.[23] Moncler has recently become victorious in the judicial arena. The Uniform Domain Name Dispute Resolution Policy under the World Intellectual Property Organization (WIPO) granted the transfer of 50 domain names incorporating its trademark.[24] In its case against Royalcat (a Chinese company), the Beijing IP Court awarded the maximum statutory damages in a trademark infringement action.[25]

As consumers we have the power to stop the counterfeiting industry. We are hurting ourselves. We have a responsibility to protect ourselves and each other. So, if you see someone considering buying a counterfeit Prada tell them “caveat emptor.” We need to educate each other about where and who are money is going to.

For more info on how to spot a fake, click here.

Kia Roberts-Warren is a 2l at University of Baltimore. She has always had an interest in international affairs. She is interested in private international law as well as international humanitarian law. She is on the executive board of ILS as the Career Development Director and is on the Phillip C. Jessup Moot Court Team.

[1] http://www.oecd.org/sti/ind/2090589.pdf

[2] http://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1254&context=honors

[3] http://qz.com/460932/fakes-are-costing-europes-fashion-industry-10-of-its-sales-and-thousands-of-jobs/

[4] http://michiganjb.org/issues/1/article4.pdf

[5]http://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1254&context=honors

[6] http://michiganjb.org/issues/1/article4.pdf

[7] https://www.iwu.edu/economics/PPE17/lewis.pdf

[8] https://www.iwu.edu/economics/PPE17/lewis.pdf

[9]  https://www.unodc.org/documents/counterfeit/FocusSheet/Counterfeit_focussheet_EN_HIRES.pdf

[10] https://www.iwu.edu/economics/PPE17/lewis.pdf

[11] https://www.unodc.org/documents/counterfeit/FocusSheet/Counterfeit_focussheet_EN_HIRES.pdf

[12] https://www.unodc.org/documents/counterfeit/FocusSheet/Counterfeit_focussheet_EN_HIRES.pdf

[13] https://www.unodc.org/documents/counterfeit/FocusSheet/Counterfeit_focussheet_EN_HIRES.pdf

[14] http://michiganjb.org/issues/1/article4.pdf

[15] http://michiganjb.org/issues/1/article4.pdf

[16] http://michiganjb.org/issues/1/article4.pdf

[17] http://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1254&context=honors

[18] http://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1254&context=honors

[19] http://crefovi.com/articles/fashion-law/efficiently-fight-counterfeiting-fashion-luxury-sectors/

[20] http://crefovi.com/articles/fashion-law/efficiently-fight-counterfeiting-fashion-luxury-sectors/

[21] http://www.oecd.org/sti/ind/2090589.pdf

[22] http://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1254&context=honors

[23] http://www.thefashionlaw.com/home/cartier-wins-court-order-blocking-sites-selling-fakes

[24] http://www.wipo.int/amc/en/domains/search/text.jsp?case=DNL2015-0031

[25] http://www.worldtrademarkreview.com/Magazine/Issue/59/News/Beijing-IP-Court-grants-maximum-amount-of-statutory-damages-for-the-first-time


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Getting Global Tax into Top Gear: Part II Formulary Apportionment in the Context of Transfer-Pricing Regimes

Julia Brent

In my first post, I defended a much-criticized theory of tax reform,[1] called “formulary apportionment (FA),” by examining two tax dynamics in the oil industry in Russia.  My conclusion was that the potential for market distortion when implementing a tax regime is so high that to cite that possibility as a weakness of FA is an over-generalized attack, and therefore invalid.  I also pointed out that the industry chose to reinvest in low-return crude oil rather than investing in refinery upgrades during the time taxes had been lowered on crude oil exports.  This example of “short term thinking” supports the premise of FA, namely that multi-national corporations (MNCs) gravitate to low-tax areas, even against their own long term interests.  This week, I address another attack leveled at FA: that FA is weak in comparison with a solid modificaiton of the current system that allows transfer pricing.  There are two variations of this critism, first in the form of a scholastic opinion from Professors at the University of Michigan Law. They say if the current system of residual taxation in the U.S. were properly applied, FA would not hold its own when stacked up against a “properly applied” worldwide regime.[2]  The second variation is in the form of an actual proposal by the OECD, which makes recommendations to modify, but still keep, the current separate entity approach based in transfer pricing.[3]  Credible advocates of FA cite the weakness of both the “properly applied” plan and the OECD proposal as efforts to ‘tweak’ a system that will still support aggressive profit-shifting.  Interestingly, some believe that implementation of the OECD proposal will actually result in an eventual adoption of FA.[4]

A few readers may be aware of the groundswell toward international reform driven by the highly-distortive market effects of transfer pricing.  If you aren’t, here is short version.  Business dealings across boundaries raise the question—what income will be taxed by which government? The current system for most MNEs is to employ “the arms-length” method, which permits transactions between parent and subsidiary companies (“transfer-pricing”), though located in different countries as independent, taxable events.

JB Blog2 1

Tax credits to prevent double taxation would apply in accordance with the applicable international treaties, and the tax bases can be aggressively affected as corporations seek to maximize after-tax profits by constructing the transactions in such a way that income shows up in low or zero tax countries.[5]  FA, a “unitary” system, regards a company as a single unit, and then formulates  a top-down division of its income into countries based on agreed-upon factors.[6]  The goal of the reform is to prevent base erosion and eliminate complexity.

Some scholars claim that if the U.S. had proper enforcement and clarity in the law regarding its residual tax, the value of low-taxed foreign-source income would be neutralized.  U.S. residual tax is the liability applied to the balance of income not covered by a foreign tax credit.  At present, deferral and cross-crediting features of the U.S. system allow its residual tax to be eliminated or substantially reduced.   Ideally, tax would be imposed on low-taxed foreign income of U.S. residents as the income was earned, thus removing the impetus to defer the repatriation of foreign income.  While still seeing some distortion, it cancels FA as a unique solution, since both (the well-enforced system and FA) would run about neck-in-neck with negative, distortive effects of base eroding deferrals and cross-crediting.[7]   A properly applied system, it is argued would make the U.S. a true “territorial” regime, whereas with deferrals, cross-crediting, and other features of the U.S. system make it so badly flawed that it is not a true worldwide regime.

However, Joseph Stiglitz, a Nobel-prize winner and one of the most outspoken critics of global economic inequality recommends scrapping the arms-length principle.  He argues that small tweaks will not prevent aggressive, artificial moves of earnings and profits to low-tax countries.  For example, the evolution of intangibles in a global, digital economy makes the arm-length pricing impossible.  Where the cost of a barrel of oil for the purpose of an arm’s length transaction can be determined using “comparables,”  one cannot fix a comparable for an iPhone in which the camera feature alone has 279 patents.[8]  Another downside, he states, is that countries who lack the ability to keep up with high-stakes profit manipulation are exploited.[9]  It is hard to imagine Eritrea coming out as a winner against a Pfiezer or a Siemens!

Drafters of the OECD current proposal for model rules and treaty creation doubt that FA’s formula-based system would encourage investment decisions that are more efficient and tax-neutral than under a separate entity approach.  The Secretary-General of the OECD states its  proposal will drain the motivation to shift profits by re-aligning taxation with economic activity and value creation and put an end to double non-taxation.[10]  For example, the proposal kicks-off negotiations towards synchronicity within the global network of bilateral tax treaties with the goal of implementing treaty-based BEPS measures.[11]

Critics of the OECD proposal argue that “Luxleaks-type” tax avoidance facilitated by tax rulings is still possible.  Implementation of the proposal will not only not eliminate the practice of using secret tax rulings, it will increase the complexity of the international tax system.[12]

Surprisingly, some experts claim that certain approaches called for by the OECD may have an unintended consequence:  specifically, regarding the proposed call for country-by-country reporting for taxpayers and that income be tied to “significant people functions” (a way to apply tax to non-financial services sector).[13]  These experts assert that these OECD proposals will incentivize a formulary approach among multinationals.[14]  To the extent a boots-on-ground implementation of the OECD requirements begins, we may see a move to a formulary system, even absent a comprehensive overhaul.

In my next blog I will discuss how the recent Russian bunker oil pricing continues the global tax reform analysis. Stay tuned!

Julia Brent is a third year law student at the University of Baltimore, focusing on International Tax (candidate for J.D. 2016). Julia graduated from the University of Hawaii with a B.A. in political science. As a CICL student fellow, she is interested in the tax impact of cross-border transactions on medium to large businesses. Julia has extensive experience in the management of high volume cases, including handling distributions related to a multi-million dollar art estate and managing all expert witness contracts for the Savings & Loan (WINSTAR) litigation, a $30 billion dispute involving 125 cases, on-site at the Department of Justice.

[1] J. Clifton Fleming, Formulary Apportionment In The U.S. International Income Tax System: Putting Lipstick On A Pig?, 36 Mich. J. Int. L. 1.

[2] J. Clifton Fleming, Formulary Apportionment In The U.S. International Income Tax System: Putting Lipstick On A Pig?, 36 Mich. J. Int. L. 5.

[3] http://www.oecd.org/ctp/beps-2015-final-reports.htm

[4] http://www.bna.com/voice-formulary-apportionment-b17179891148/

[5] http://www.taxpolicycenter.org/briefing-book/key-elements/international/formulary-apportionment.cfm

[6] http://www.bna.com/voice-formulary-apportionment-b17179891148/

[7] J. Clifton Fleming, Formulary Apportionment In The U.S. International Income Tax System: Putting Lipstick On A Pig?, 36 Mich. J. Int. L. 5.

[8] http://ip-science.thomsonreuters.com/m/pdfs/iphone-report.pdf

[9] http://www.bna.com/voice-formulary-apportionment-b17179891148/

[10] https://euobserver.com/economic/130565

[11] https://www.asil.org/insights/volume/19/issue/24/emergence-new-international-tax-regime-oecd’s-package-base-erosion-and

[12] https://euobserver.com/economic/130565

[13] http://www.pwc.com/us/en/transfer-pricing-strategies/assets/transfer_pricing_and_permanent_establishments_oecd_view.pdf

[14] http://www.bna.com/voice-formulary-apportionment-b17179891148/


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Governmental Media Regulation: U.S. vs. Bhutan

Raiven Taylor

As we all know, the media is used to spread the most recent news and current events. What many people do not know is that the media have rules and regulations they must follow in order to stay on TV and/or the radio. Many rules that regulate the media differ from country to country. Although the U.S. Constitution’s First Amendment guarantees the right to freedom of the press, usually with minimum regulations, other countries, such as Bhutan, which will be explored in this blog, do not have such freedom.

The U.S. gives most leeway to print media, such as newspapers, magazines, and flyers.[i] The only real regulation for print media is to deter defamation. [ii]  Defamation happens when untrue information is printed that may cause harm to someone.[iii] Defamation can be either written (libel) or communicated verbally (slander). Broadcasting media are a little more regulated than print.

Media1

Broadcasting media are also regulated against defamation. In fact, broadcasters and their networks can be sued for slander.[iv] Broadcasting is also heavily regulated by the Federal Communications Commission (FCC).[v] The FCC polices the content of the airwaves and has the authority to fine or revoke broadcasting licenses for violating any of the following: broadcasting obscene programs at any time, broadcasting indecent programs during certain hours, or broadcasting profane language during certain hours.

Having regulations on the media could eventually spill into social media. However, to date, the U.S. has only come up with basic regulations on social media, such as the right of privacy, how one may create social media policies, and protocols for marketing on social media.[vi] Because social media is a growing media source, it has been very hard for the government to regulate.

Media2

On the other hand, Bhutan has more restrictions on media outlets. Even though Bhutan claims to have a Constitution allowing free speech and opinion, Bhutan has an Act that prohibits criticism of the king as well as anything that may undermine or attempt to undermine the security and sovereignty of Bhutan.[vii] The government even restricts and censors topics that involve Nepali-speaking residents having to leave Bhutan.[viii] Many of the media outlets hesitate to push the limits of the regulations because the media depends on the government for funding and support.[ix]

Bhutan is a country that is far behind the times on Internet and television, both of which arrived in 1999.[x]  Even though Bhutan was behind the times, almost 10% of their population is on social media.[xi] Social media gives the Bhutanese an outlet to express their own opinions and views and changed the idea of criticizing the government, giving the younger generation an opportunity to have an opinion. [xii] However, due to the growth of social media and the presence of the population on social media in Bhutan, the government decided in 2014 to draft policy on the use of social media.[xiii]

Media3

The government agreed that a huge benefit of having a social media policy would be for the government to engage its citizens and officials in the use of social media to share government information as a developmental tool for social, economic, and political change.[xiv] Discussions concerning social media use in Bhutan have even led to the idea of incorporating curriculum in the schools to have a social media component.[xv] Even though the Bhutanese government may appear to support the idea of social media and is not trying to regulate social media, the government has created guidelines one must follow when using social media. These include the requirement to be accurate, to never post anything malicious or misleading, to respect the Constitution and all laws, and to act in good judgment.[xvi] These are many things that young people do not think of when posting their opinions.

Given an option between the United States and Bhutan, I would choose to use social media in the U.S. The U.S. may regulate TV, radio, and print, but it does not regulate it in a way that would affect one’s rights. The U.S. can write, state, or show on TV what’s going on in the government, even if they disagree with what the government is doing. On the other hand, Bhutan regulates its media outlets in a way that only shines light on the government’s positive aspects instead of the negative. The Bhutanese government does not allow its citizens to share their opinions if they disagree with what the government is doing. While beneficial to maintaining the status quo in Bhutan, this restriction of rights affects the rights of the media and Bhutanese citizens alike.

Raiven Taylor is third year law student at the University of Baltimiore School of Law and is completing her concentration in International Law. She has an undergraduate degree in Political Science from Bowie State University. She has studied abroad in London, England and Clermond-Ferrand, France. She is an Senior Staff Editor for the Journal for International Law as well as Secretary for the International Law Society. Additionally, Raiven is a Rule 16 student attorney in the Immigrant Rights Clinic. Her passion and interest in international law is human trafficking and international human rights law.

[i] http://study.com/academy/lesson/rules-governing-the-media-definition-examples.html

[ii] Id.

[iii] Id.

[iv] Id.

[v] Id.

[vi] http://blogs.forrester.com/nick_hayes/13-07-31-five_common_legal_regulatory_challenges_with_social_media

[vii] https://freedomhouse.org/report/freedom-press/2013/bhutan

[viii] id.

[ix] Id.

[x] http://www.bbc.com/news/world-asia-25314578

[xi] Id.

[xii] Id.

[xiii] http://www.undp.org/content/bhutan/en/home/presscenter/articles/2015/01/14/bhutan-forms-its-first-social-media-policy.html

[xiv] Id.

[xv] Id.

[xvi] http://www.gnhc.gov.bt/wp-content/uploads/2011/05/RGoB-Draft-Social-Media-Policy.pdf


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Getting Global Tax Into Top Gear:  How Russia’s New Oil Tax Regime Supports the Case for an Old Reform Theory

Julia Brent

The global tax system needs an overhaul.[1]  The growth of international opportunity has created a danger for the economic health of many countries in the form of tax base erosion. Multi-national companies (MNCs) raise revenues by using domestic tax laws to shift profits in a system that puts investors in the dark, hinders compliance, and encourages peculiar, need-of-the-moment legislation.  Examples of such piecemeal legislation include the current U.S. Senate proposal for a temporary 6.5 percent repatriation tax holiday to fund highways[2] or Belgium’s 2016 proposed “Diamond Regime,” which eliminates the ability to carry forward losses of the MNCs of that industry.[3]

Reform is needed. One much-criticized theory of reform, called “Formulary Apportionment” (FA), still holds its ground in scholastic circles,[4] and this paper attempts to defray a criticism that FA potentially distorts the market, and therefore should be dismissed. FA would restructure a MNC’s taxes so that it pays income in a country based on a formula-based fraction of total income. The goal of FA is to repatriate income that has gravitated to low-tax countries and, in so doing, has undermined the local tax base.  Russia’s new tax regime weakens the criticism of FA in a surprising way: Russia’s recent attempts to create a growth-oriented tax system resulted in negative market distortion despite their best efforts.  This example negates dismissing the theory of FA reform out of hand on the basis of a difficulty faced by tax systems generally.  In addition, the reason for the market distortion in Russia supports FA, in that during the post-2000 tax regime, the oil industry went against its own interests and gravitated toward low-tax products, actions that would have undermined the industry base but for other factors. [5]

JB 1

FA reform is based on a formula-based fraction of total income (sales, payroll, and capital stock), with the fraction tied to the geographic point of sale.  In the U.S., MNCs currently determine their profits separately in each operational jurisdiction, while goods or services are sent all over the world.  A system of FA would replace this separate accounting method.  For example, a MNC would pay U.S. taxes only on the share from its total income that is allocated to the United States.

A move to FA would noticeably reduce incentives to shift economic activity or income to low-tax countries, and by treating similar firms in a uniform fashion, regardless of where they are incorporated, would eliminate much administrative complexity.  The theory, however, has been regarded as having many faults, most of which center around the hazards of applying the method in the current environment of different systems and different currencies.  One stand-alone criticism, and the subject of this blog post and the two subsequent posts over the next weeks, is that there would be problems in violations of a commitment to a growth-oriented tax system that minimizes the distortions of market signals (the stated OECD goal for tax reform among OECD nations).[6]  However, it could be argued that the FA method of taxing based on geographic location of sales would likely support growth because it allows for a “local” government, which is closer to the source income, to potentially promote the industry with careful tax design.

Russia’s new tax regime has such a goal for its oil industry; policy-makers’ desire to stimulate upgrades in its oil refineries. Russian refineries were originally built to satisfy the demands of the Soviet industry, and, as of 2000, produced large volumes of fuel oil, low-quality diesel, and low-octane gasoline.[7]  Its crude was mostly processed to be fuel oil for domestic heating needs.[8]  Now, the market has a permanent demand for the higher flashpoint fractions, i.e., high-octane gasoline, petrochemical feedstock, and jet fuel.[9]  In 2000, the government took on configuring a “growth-oriented tax system,” one that would not only encourage refinery upgrades, but also satisfy the needs of the government, since thirty-two percent (32%) of Russian government revenue comes from oil-extraction taxes.[10]

JB 2

To stimulate refining depth, Russia implemented the equivalent of a micro-version of FA when applied to the Vertical Integrated Oil Companies (VIOCs) (the “well to pump” large companies, like Royal Dutch Shell or Exxon).  The oil industry has two sectors generally, “upstream” and “downstream.” The first refers to all aspects of lifting crude from a field, and the second refining the crude (either by straight run or the more processing-intense ‘cracking’) to produce valuable products like gasoline.  Refineries, obviously, are part of the downstream sector.   Russia chose to structure its tax burden evenly between the upstream and downstream sectors, in the hopes of creating cross-subsidy between upstream and downstream segments, providing significant impetus to refineries, including primary processing plants.  This it did by lowering export duties on oil products, and pricing crude oil domestically as a function of export netback price.[11]  “Netback” subtracts the costs associated with bringing one unit of oil to the marketplace from all of the revenues from the sale of all the products generated from that same unit.  By basing the tax regime on the concept of “netback” and then working backward to figure tax on a fraction that is tied to sector, this is similar to the structure of FA when applied to the microcosm of a VIOC.

The result was that since the year 2000, the total output of Russian refineries has risen from 190 million tonnes to 302.5 million tons, with VIOCs accounting for 57% of increased volume.[12] In only eight years, from 2005 to 2013, total downstream investments by domestic VIOCs soared from US$1.4b to US$10b, with investments over the past three years rising by US$2.3b*.[13]

JB 3

An interesting aspect in this result was that the initial response by the VIOCs was to use the savings on exports to just do more of what they were already doing, i.e. producing low grade oil products.  Although dashing the hopes of Russian policymakers, the tax maneuver indirectly drove refinery upgrades as the extra funds were available as VIOCs responded to market pressure by ultimately upgrading the refineries.

Though the result appears to strengthen the criticism that FA results in negative market distortion, it actually undermines the criticism for two reasons. First, by virtue of the fact that distortions simply happen despite efforts to the contrary: a favorable tax environment was and is seen in Russia as a crucial driver of investment activity in the downstream segment.  A general attack discounting FA as a legitimate theory for this reason is inadequate at best, since FA is such a large system reform.

Second, the Russian cross-subsidy example supports the FA reform broadly in an unexpected way.  FA advocates assert that the current system generates a large tax incentive to earn income in low-tax countries, and multinational firms respond by earning disproportionate profits in low-tax locations.  In the Russian example, even though it was in the VIOC leaders’ best interests to upgrade refineries – and there were many upgrades that were financially feasible – when faced with the lowered duties on exported oil products, rather than upgrading, producers gravitated toward the low-taxed products in their own industry.

In my next blog I will discuss how the recent Russian bunker oil pricing continues the global tax reform analysis. Stay tuned!

Julia Brent is a third year law student at the University of Baltimore, focusing on International Tax (candidate for J.D. 2016). Julia graduated from the University of Hawaii with a B.A. in political science. As a CICL Fellow, she is interested in the tax impact of cross-border transactions on medium to large businesses. Julia has extensive experience in the management of high volume cases, including handling distributions related to a multi-million dollar art estate and managing all expert witness contracts for the Savings & Loan (WINSTAR) litigation, a $30 billion dispute involving 125 cases, on-site at the Department of Justice.

[1] http://www.cnbc.com/2014/01/21/global-tax-system-needs-overhaul-say-ceos-at-davos.html

[2] http://www.economics21.org/commentary/portman-schumer-international-corporate-tax-reform-07-20-2015

[3] http://www.pwc.be/en/news-publications/news/tax-reform.html

[4] http://www.taxpolicycenter.org/briefing-book/key-elements/international/formulary-apportionment.cfm

[5] http://www.irishtimes.com/news/world/europe/russia-forecasts-recession-as-oil-price-slump-takes-toll-1.2048933

[6] https://www.osler.com/en/resources/regulations/2013/oecd/oecd-g20-international-tax-reform-potential-impac

[7] http://www.ogj.com/articles/print/volume-98/issue-13/special-report/refinery-upgrades-essential-to-russian-recovery.html

[8] http://www.ey.com/Publication/vwLUAssets/EY-Russias-downstream-sector-sights-set-on-modernization/$FILE/EY-Russias-downstream-sector-sights-set-on-modernization.pdf

[9] https://www.iea.org/oilmarketreport/omrpublic/

[10] http://www.ey.com/Publication/vwLUAssets/EY-Russias-downstream-sector-sights-set-on-modernization/$FILE/EY-Russias-downstream-sector-sights-set-on-modernization.pdf

[11] http://www.ogj.com/articles/print/volume-98/issue-13/special-report/refinery-upgrades-essential-to-russian-recovery.html

[12] http://www.ey.com/Publication/vwLUAssets/EY-Russias-downstream-sector-sights-set-on-modernization/$FILE/EY-Russias-downstream-sector-sights-set-on-modernization.pdf

[13] http://www.ey.com/Publication/vwLUAssets/EY-Russias-downstream-sector-sights-set-on-modernization/$FILE/EY-Russias-downstream-sector-sights-set-on-modernization.pdf