Tag Archives: global law

Rudy Elmer, the Panama Papers and Deconstructing Offshore

In this post, Sol Picciotto,  Emeritus Professor of Lancaster University, provides an update on developments pertaining to the case of Rudolf Elmer which he wrote about in a chapter from the recently published The New Legal Realism Volume II: Studying Law Globally.

My chapter on “The Deconstruction of Offshore”, in the book The New Legal Realism 2: Studying Law Globally used the personal story of Rudolf Elmer to open up some of the fascinating story of the construction and more recent deconstruction of the offshore system.

Elmer is one of several whistle-blowers whose revelations have helped to spotlight some of the otherwise arcane practices of avoidance of tax and other state regulatory requirements developed mainly by lawyers, which helped to shape 20th century transnational corporate capitalism.

My chapter began by noting that of 28 encounters with the Swiss courts, Elmer had lost 27 of them. However, the final decision of the High Court of Zurich dated 19 August 2016 was forced to substantially exonerate him. The court conceded that Elmer was not guilty of breaking the strict Swiss bank secrecy law, since he was actually employed by an entity formed in the Cayman Islands. There is an obvious rich irony here, since this was a subsidiary of the Julius Baer Bank, formed to help its clients avoid tax and other laws, yet the Baer Bank was the main complainant in the case against him. Furthermore, a strongly worded report in the Sonntagszeitung of 30 July 2016 castigated the conduct of the case by the prosecutors, who had failed to disclose documents proving Elmer’s employment status.

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Rudof Elmer at the Press Conference of Wikileaks in the Frontline Club, January 2011.

In fact, the Baer Bank has had a bad year. As Forbes reported back in February, two of its bankers pleaded guilty, and the Bank itself admitted that it knowingly assisted U.S. taxpayer-clients in evading taxes, agreeing to pay $547 million in a deferred prosecution deal.

The revelations have not been confined to Switzerland, which is just one node of the offshore secrecy system. In April the world was rocked by the publication of the Panama Papers by the International Consortium of Investigative Journalists. These contained files and emails from the prominent Panamanian lawyers Mossack Fonseca, detailing some of their work for clients around the world. Elmer himself recorded some comments on the implications.

This publicity contributed to the public pressures forcing world leaders to deliver on their promises to end the abuse of this secrecy system. Panama agreed in October to sign up to the OECD’s multilateral convention on assistance in tax matters (although it must still ratify the treaty), and to commit to implement automatic exchange of tax information by 2018. There are still significant gaps: notably the US still stands aside from this multilateral framework, relying on the network of bilateral agreements it has fashioned under the Foreign Account Tax Compliance Act (FATCA), even though many of these are not fully reciprocal. Indeed, the US itself remains in many ways an important secrecy jurisdiction for non-US citizens. Research has shown how easy it is to set up a shell company in the US, and state legislatures are resisting pressures to introduce shareholder registration rules. Despite ringing statements that “the era of bank secrecy is over”, although considerable progress has been made, there is still some way to go.

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Atuahene on NLR and South Africa

New Legal Realism Conversations is excited to welcome our newest blogger, Professor Bernadette Atuahene!  Bernadette’s work exemplifies the NLR ideal three-part combination of work on law, social science and policy.  An attorney fully conversant with the formal law and legal theory, she also conducted field research and interviews in South Africa to examine the question of rights to land and land loss in South Africa.  She used her knowledge of law and her empirical research to inform policy in ways that are right now having effects “on the ground” in South Africa. (And, moving even further to a “four-part” combination, she also helped to create a film that publicizes the South African situation).  In her first blog post, Bernadette explains how her new legal realist combination of social science and law inspired her work:

New Legal Realism and Justice in South Africa

One goal of scholars who work under the umbrella of New Legal Realism (NLR) is  to produce empirical scholarship that impacts policy while maintaining intellectual integrity.  This is exactly what I have done with my work in South Africa.  My new book, We Want What’s Ours: Learning from South Africa’s Land Restitution Program (Oxford University Press, 2014) is based on 150 interviews that I conducted with people who were robbed of their land rights by the colonial and apartheid governments and who received some type of compensation through the land restitution program.  The book develops two concepts:  Dignity takings and dignity restoration.

Millions of people all over the world have been displaced from their homes and property. Dispossessed individuals and communities often lose more than the physical structures they live in and their material belongings; they are also denied their dignity. These are dignity takings, and land dispossessions occurring in South Africa during colonialism and apartheid are quintessential examples. There have been numerous examples of dignity takings throughout the world, but South Africa stands apart because of its unique remedial efforts. The nation has attempted to move beyond the more common step of providing reparations (compensation for physical losses) to instead facilitating dignity restoration, which is a comprehensive remedy that seeks to restore property while also confronting the underlying dehumanization, infantilization, and political exclusion that enabled the injustice. Dignity restoration is the fusion of reparations with restorative justice. We Want What’s Ours provides a snapshot of South Africa’s successes and failures in achieving dignity restoration.

Most importantly, as this clip from the Johannesburg book launch shows, the Deputy Land Claims Commissioner announced that the Commission has adopted 90% of the book’s recommendations: ttps://youtu.be/fjGBhQkhTVw  This is the sweet spot for NLR scholars: carefully collected data having a positive impact on policy and the lives of the most vulnerable among us.  This outcome was no coincidence.  It involved years of building a strong  relationship with the leaders of the institution I studied (the Land Claims Commission) and taking time to find out how I could collect data on topics of immediate concern to them while also collecting data on theoretically important topics.

While NLR scholars produce scholarship that uses data to help us understand the most complicated social issues of our day, our goals do not stop there.  We also ideally take measures to ensure our work is disseminated widely.  The NY TimesLA Times and several other newspapers have published my op-eds about the book.  We Want What’s Ours has also received extensive TV, radio and print coverage in the US and South Africa. With colleagues, I also created a nonprofit called Documentaries to Inspire Social Change (www.discwebsite.org), which produced an 18 min. documentary about one South African family’s fight to regain their land stolen by apartheid authorities.  While books reach a wider audience than academic articles, film is the way to reach and educate larger groups of people.

The book, documentary film, op-eds and TV as well as radio appearances ensure that knowledge about land dispossession in South Africa is not trapped in the ivory tower, but instead reaches outside of university spaces to the broader population.  This is what NLR scholarship is all about.

For more about the book: wewantwhatsours.com

NY Times op-ed: http://www.nytimes.com/2015/01/16/opinion/south-africas-land-inequity.html?_r=1

LA Times op-ed: http://www.latimes.com/opinion/op-ed/la-oe-atuahene-mandela-land-south-africa-20141207-story.html

Aman on Lawyers, Social Science, and Globalization

What should social scientists know about lawyers’ views on globalization? In our previous post, Michele LaVigne argued that social scientists need to consult with lawyers more if they want their research to have any impact on fairness in indigent defense. Fred Aman was inspired to send in some advice to scholars interested in law and globalization.

Globalization: Legal Aspects

Law’s role in globalization is often misunderstood, mainly with respect to whether “the global” is its own distinct and unified field. To a large extent, this misunderstanding reflects the influence of neoliberalism, some versions of which treat globalization as a function of capitalism (thereby relegating it to the preserve of economics). Such a formulation leaves little room for law, except in relation to international law and such “global” institutions as the International Monetary Fund (IMF), the World Trade Organization (WTO), and other legal arrangements primarily associated with the liberalization of trade. From this standpoint, one might imagine that globalization is all about competition—a competition for markets and investments that is global in scale and increasingly intense as markets expand. Accordingly, one might not think that law has much to do with this phenomenon beyond stepping out of the way, except where law contributes to the creation of markets and to ensuring that they function efficiently.

But the reality of globalization challenges such formulations. Law has an important role to play, particularly in contexts in which economic activity generates human rights questions, such as child labor. We need to focus on law’s prominence in the creation, implementation and contestation of globalization. The contexts in which law is relevant reflect the great diversity of relationships, circumstances, and legal arrangements under which globalization develops….

Globalization is embedded in our institutions—domestic and international, public and private, by virtue of legal arrangements (legislation, agency regulations, contracts, etc.) that draw global “forces” into everyday life, and vice versa. It is not a unilinear process or geography “out there,” but a dynamic relation across multiple regimes of public and private ordering. Globalization is subject to a wide array of influences and control and yields pervasive social effects—some of them broadly homogenizing, some of them diversifying in highly specific ways Understanding the relationship of globalization to law requires analysis of the interactions of markets, rights and bodies of law at all levels of government, domestic and international, as well as diverse processes of governance that involve norm creation, enforcement and adjudication by state and non-state actors alike.

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Carole Silver on global legal education

Continuing our discussion on global legal education, Carole Silver of Indiana University’s Maurer School of Law responds to Tejani and Aman.  Professor Silver is an expert on legal education and the globalization of the legal profession.  She has directed major programs at Georgetown and Indiana in these areas in addition to her own empirical research on global legal education.

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Aman responds on Law School Crisis

Riaz’s excellent post suggests a number of intriguing possibilities for rethinking the standard law school curriculum. I find especially provocative his  challenge to reconsider the conventional distinctions of subject matter from the
standard of social movements and their transnational effects.

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Tejani on Transnationalism and the Law School Crisis

Transnationalism and Nonpurity: Europe, Law Schools, and ‘Law in Action’ for the Current Crisis

Riaz Tejani

Having recently completed an ethnography of “crisis” in French politico-legal culture in the period surrounding the failed European Constitution, I was intrigued by Alfred Aman’s piece on the “Law School Crisis” (3/13/12).

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LAW SCHOOL CRISIS

ARE LAW SCHOOLS IN CRISIS?
Alfred C. Aman, Jr.
 Seminar, February 2, 2012: Harvard Law School SJD Association

The New York Times’ call for reform comes during a time of unsteady economic recovery, rising tuition costs, ever-higher debt loads for students, and fewer legal jobs, especially high paying legal jobs….

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Introducing 2 new legal realists and 2 old legal realists…

In our September 2011 post, we introduce two members of a younger generation of new legal realists, and re-play some nuggets of wisdom from two of the older generation…. Jerome Frank and Karl Llewellyn.

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