The Swiss Business Foundation--a suitable estate planning vehicle for entrepreneurs?

Swiss ‘Business Foundations’ are certainly not themost obvious option for entrepreneurs wishing to conduct a businessor trade or to set up a holding structure. This article examinesselected legal and tax issues that arise when setting up sucha Swiss Business Foundation in order to determine in which circumstancesthese structures are suitable estate planning vehicles for entrepreneurs.     

The trust in Spanish and Italian private international law: Part I

Civil Law jurisdictions' recognition of trusts depends on theindividual conflict of law rules of each jurisdiction. The HagueConvention on the Recognition and Enforcement of Trusts intendsto bring a degree of certainty into how a foreign trust is received.However, the matter is complicated, in particular, as to thestatus granted in each jurisdiction to the convention. Thisarticle, based on a paper presented at the convention on CatalanCivil Law, ‘Los patrimonios fiduciarios y el trust’,held in Tarragona on 20 and 21 October 2005, examines the positionof trusts under the conflict of law rules in Italy and in Spainand the impact made on the recognition of trusts by the HagueConvention. This article appears in two parts; in this firstpart the position in Italy is examined and the second part concludeswith the position in Spain.     

'Unlawful Enemy Combatant': Status, Theory of Culpability, or Neither?

The Military Commissions Act of 2006 represents the United States’most recent effort to establish a forum to try detainees capturedin its ‘Global War on Terrorism’. This article brieflyexplores the Act's use of the term ‘unlawful enemy combatant’to define both subject matter jurisdiction as well as the potentialsource of criminal liability. The article highlights the term'sabsence from the positive law of war as well as confusion overits legal significance in United States domestic law. Examiningthe relationship between status and protections under the lawof war, the authors conclude the Act's use of the term ‘unlawfulenemy combatant’ reflects legal convenience more thanan objective assessment of the existing laws and customs ofwar.     

Equity and Conscience

This article argues that the peculiarly ‘common law tradition’separation of common law and equity had at its origins a principledbasis in the concept of ‘conscience’. But ‘conscience’here did not mean primarily either the modern lay idea, or the‘conscience’ of Christopher St German's exposition.Rather, it referred to the judge's, and the defendant's, privateknowledge of facts which could not be proved at common law becauseof medieval common law conceptions of documentary evidence andof trial by jury. The concept of a jurisdiction peculiarly concernedwith this issue allowed the ‘English bill’ procedureto be held back to a limited subject area rather than—asin Scotland and the Netherlands—overwhelming the old legalsystem. By the later 17th century, however, the concept of consciencehad lost its specific content, leaving behind the problem, stillwith us, of justifying the separation of ‘equity’.     

An Odd Couple: Domestic Crimes and International Responsibility in the Special Tribunal for Lebanon

This article examines one of the most serious flaws of the Statuteof the Special Tribunal for Lebanon (‘STL’): whileit provides that Lebanese domestic law is the sole source ofcrimes over which the STL will have jurisdiction, it at thesame time applies to these domestic crimes uniquely internationalforms of criminal responsibility, namely joint criminal enterpriseand command responsibility. By doing so, the Statute is in violationof the nullum crime sine lege principle, since it would allowfor the conviction of persons who could not be held responsibleunder Lebanese law. The purpose of this article is to highlightsome ways out of this problem.     

Whose 'Conduct Unbecoming'?: The Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator

The article focuses on the decision of the Israeli MilitaryAdvocate General (MAG) to charge an officer who ordered theshooting of a handcuffed, blindfolded Palestinian demonstrator,and the soldier who executed the order, for ‘conduct unbecoming’.It advances the following propositions: (i) from the perspectiveof the applicable international law, the facts of the case qualifythe shooting as a war crime; (ii) said decision of the IsraeliMAG is indicative of a policy of tolerance towards violenceagainst non-violent civilian protest against the constructionof the Separation Wall; (iii) the implication of such policyis twofold: first, it might transform ‘conduct unbecoming’— which as a matter of law is a war crime — intoa crime against humanity; second, it may well be construed asan invitation to the international community to intervene throughthe exercise of universal jurisdiction.     

The 'final' privacy frontier? Regulating trans-border data flows

This article examines the threat to privacy posed by the transferof personal information from one jurisdiction to another. Despiteinternational trends towards greater protection of personalinformation, significant challenges to personal privacy arisein this context. These include the use of outsourcing by businesses,the encroachment of security laws and the potential ‘spill-over’of technologies developed for combating terrorism into the privatesector. Also significant are technologies enabling the ‘profiling’of individuals and ‘data mining’ across borders.Against this backdrop, the article considers existing jurisdictionalresponses towards regulating personal information flows acrossborders. It considers various actual or proposed solutions including‘safe-harbours’, contractual mechanisms and extra-territorialapplications. The article concludes that many of the existingapproaches to regulating trans-border information flows areto some extent deficient and suggests the need for a new ‘fourthgeneration’ set of data protection protocols. In formulatingthe latter, analogies are drawn from other relevant areas ofthe law in order to furnish creative solutions to the problem.     

Switzerland Trust in the system: The trust arena is on the brink of change in Switzerland, with a new Bill waiting for parliamentary approval

The final version of the Swiss government's Bill on trusts,released on 5 December 2005, was approved by the Upper Housewithout reservations on 23 March 2006. The message sent out by the chairman of the reporting commissionwas clear: ‘[Switzerland] has to ensure that it does notfall behind its competitors in the Anglo-Saxon part of the worldand Singapore. What happened with investment funds should nothappen again.’ The Upper House agreed.     

The Targeted Killing Judgment of the Israeli Supreme Court and the Critique of Legal Violence

The targeted killing judgment of the Israeli Supreme Court has, since it was handed down in December 2006, received a significant amount of attention: praise as well as criticism. Offering neither praise nor criticism, the present article is instead an attempt at a ‘critique’ of the judgment drawing on the German-Jewish philosopher Walter Benjamin’s famous essay from 1921, ‘Critique of Violence’. The article focuses on a key aspect of Benjamin’s critique: the distinction between the two modalities of ‘legal violence’—lawmaking or foundational violence and law-preserving or administrative violence. Analysing the fact that the Court exercises jurisdiction over these killings in the first place, the decision on the applicable law as well as the interpretation of that law, the article finds that the targeted killing judgment collapses this distinction in a different way from that foreseen by Benjamin. Hence, the article argues, the targeted killing judgment is best understood as a form of administrative foundational violence. In conclusion Judith Butler’s reading of Benjamin’s notion of ‘divine violence’ is considered, particularly his use of the commandment, ‘thou shalt not kill’, as a non-violent violence that must be waged against the kind of legal violence of which the targeted killing judgment is exemplary.     

Smoking Guns: European Cigarette Smuggling in the 1990’s

This article concerns European cigarette smuggling over the past decade and examines the actors, structures and relationships which facilitated the illicit trade. It discusses the central role played by actors not traditionally associated with organised crime, such as multi-national tobacco companies, Swiss banks and the state security agencies of various Balkan states. It demonstrates how domestic legislation in Switzerland and instability in the Balkans prevented national law enforcement agencies from effectively dealing with this international network at an earlier stage. The article also focuses on the history of local and national law enforcement investigations as well as the integrated multi-national investigation project later initiated by the EU and member states. The article's conclusions suggest that while smuggling actors have successfully adapted to the process of globalisation – financial and state deregulation – law enforcement agencies remain at a disadvantage as they are hampered by the domestic legislation in nation states such as Switzerland and the United States. While cigarette smuggling was and is a major illicit industry, it has not been the subject of much academic scrutiny. This article, based on field research in the Balkans and EU member states aims to contribute to a broader understanding of a problem involving a multiplicity of criminal actors, states and law enforcement agencies.     

'Where the Parents are of the Same Sex': Quebec's Reforms to Filiation

To advance debates on legal responses to parenting by gay andlesbian couples, this article introduces reforms enacted bythe legislature of Quebec, a civil law jurisdiction with a codifiedprivate law, in 2002. Quebec's pioneering regime permits twopersons of the same sex to register as a child's parents frombirth, not only by adoption. They may do so if they conceivedthe child as part of a ‘parental project’. Moreover,a person alone may have a child via a parental project. Thearticle identifies the policy choices reflected in the amendmentsand highlights weaknesses in the drafting, instructive to policymakers in civil law or common law jurisdictions. It emphasizesthe structural difficulty of amending the civil law's fundamentalinstitution of filiation to recognize two parents of the samesex. Comparing with ad hoc judicial developments from a Canadiancommon law province, it underscores the potential in systematiclegislative reform. Conservative scholars have resisted thenew regime as an inappropriate departure from the pursuit offiliation's biological vocation. The study reveals how selectivelyjurists may remember the past and how swiftly they may characterizeinnovations relating to parentage – such as the earlierabolition of illegitimacy – as natural. The mingling ofbiological fact and fiction in the new regime underscores thesimilar blending in more traditional forms of filiation.     

Extra Unionem nulla salus? Teaching and researching EU law in Norway and Switzerland

ABSTRACT

Brexit is creating great uncertainty in the UK, including as concerns the future of EU law as an academic discipline. This article tries to shed some light on the issue by describing the situation in two countries whose relations to the EU might provide a blueprint for future UK–EU relations: Norway and Switzerland. After outlining the current state of relations between these states and the EU, the authors describe the (rather flourishing) state of EU law in Swiss and Norwegian academia. The conclusion is that for EU law as a discipline, there is indeed salvation outside the EU. However, a precondition for success is a high level of economic and legal integration.     

Corporate Liability for International Crimes under Canada's Crimes Against Humanity and War Crimes Act

Given that the Rome Statute does not provide jurisdiction totry corporations for breaches of international criminal law,it has been suggested that national jurisdictions might be usedto fill this impunity gap. The author presents several arguments.First, the international criminal law system, including theRome Statute — and particularly the principles of universaljurisdiction and complementarity — provides the theoreticalgrounding for states to assert jurisdiction over internationalcrimes wider than the International Criminal Court (ICC). Second,Canada, owing to interactions between its domestic legislationimplementing the ICC Statute and existing national criminallaw, is now able to prosecute corporations for breaches of internationalcriminal law. Finally, this increased jurisdiction of Canadiancourts is consistent with the current status of corporationsunder international criminal law. What is really interestingabout Canada's approach, however, is not so much that it hascreated a new legal principle, but rather that it is one ofthe first countries to establish jurisdiction over internationalcrimes committed by corporate entities which were previouslycommitted with impunity.

By stating that I could not guaranteethat the army is not using forced labour, I certainly implythat they might, (and they might) but I am saying that we donot have to monitor the army's behaviour: we have our responsibilities;they have their responsibilities; and we refuse to be pushedin to assuming more than what we can really guarantee. Aboutforced labour used by troops assigned to provide security onour pipeline project, let us admit between Unocal and Totalthat we might be in a grey zone.¹

     

Just So: “The Law Which Governs Australia is Australian Law”

This essay provides a gloss on the relationship between the common law and the ‘law of the land’. It does so by turning attention to the technologies and identifications that continue to give Australian jurisdiction its place. These relations repeat the long pattern of the common law ordering of colonisation. They also provide the governmental conditions of legal responsibility for settlement. This revised version was published online in July 2006 with corrections to the Cover Date.     

On the Question of Dutch Courts' Universal Jurisdiction: A Response to Mettraux

In response to Guénaël Mettraux's article regardingthe recent exercise of universal jurisdiction over torture andwar crimes by a Dutch court, the author disputes Mettraux'sreading of these cases on several points. These points includethe legal basis for exercising universal jurisdiction over violationsof Common Article 3 and the criterion of involvement of publicauthorities in the crime of torture.     

国际刑事管辖权冲突的“适当法”观照——来自国际私法学的借鉴

国际刑事管辖权冲突的适当法是受国际私法学中关于侵权行为的适当法理论的启迪而提出来的。它主张将犯罪问题加以分解而对所涉及的各种因素进行更为精确的分析 ,从而确定与犯罪有最密切联系的国家具有管辖权的“适当性” ,为此 ,本文提出了确定最密切联系地的“质量相结合标准”。国际刑事管辖权冲突的适当法为有关国家间国际刑事管辖权争议的公正合理的解决提供了一种新的模式 ,将有利于对国际犯罪的有效惩治和打击 ,也为不同学科之间在理论上的相互借鉴提供了一个良好的范例。     

Perception of Seriousness and Concern about White-Collar Crime: Some Results of an Opinion Survey Among Swiss Banks

Scientifically, little is known about white-collar crime in Switzerland or concern about white-collar crime and even less about how concerned bank employees are about this criminality. This article is based on a small opinion survey of Swiss bank employees and tries to explore perceptions of seriousness and concern about white-collar crime among people who, in their position, might have to face this issue regularly. Past assumptions on the public’s indifference towards white-collar crime seem not to be confirmed in this study as the results obtained demonstrate a greater sensitivity with respect to white-collar crime and especially towards crimes perpetrated by corporations. Even though Swiss bank employees do qualify white-collar offences as very serious acts, they are still more punitive with regard to ordinary crimes.     

不动产税及其对不动产产业的经济引导

本文检讨有无可能透过不动产税制之经济引导作用,防止或矫正房地价格飙涨的情势。为达到促进投资,方便流通,但防止单纯赚取价差之房地买进卖出的管制目标,(1)土地用途编定向比较有价值的方向变更时,应课征以用途变更为要件之特别税捐或规费。(2)将土地开发的外部成本确实内部化,以降低对于土地交易所得税的依赖。(3)分离独立观察土地及房屋的市场价值,规划土地及房屋税制之税基的规定。(4)建立房地集中交易市场,使房地之交易行情透明化,方便在有房地交易时,能确实依据实际交易价格计算其所得额,并配合不动产政策,规划适当税率,课征房地交易所得税。(5)有房地集中交易市场时,房屋或土地的资本利得税之轻重如有调整的需要,其调整点宜设定在税率,而不在税基。(6)资本利得有关税捐的税率,应定在哪一水平,取决于政策上对于不动产之资产利得的课税立场。(7)房屋及土地之课税收入除用以支应房地建设所需的外部环境外,并必须用来解决经济弱势者的社会住房问题。     

The Legal Status of Three Sino-US Joint Communiques

Many would agree that the Sino–US relations are one ofthe most important bilateral relations in the world today, andthe three communiqués signed by the two governments arethe most significant agreements signed so far in managing theirrelationship. This article attempts to examine these joint communiquésagainst their contents and historical backgrounds, and triesto discern their legal status under both international law andUS domestic law. It concludes that they bear features of treatiesunder international law and should be regarded as legally bindinginstruments on the international plane, and that their statusunder US law seems ambiguous in the absence of any court rulingsup to date.     

Girl Members of Deviant Youth Groups,Offending Behaviour and Victimisation: Results from the ISRD2 in Italy and Switzerland

Although a lot of research has been conducted on the delinquency of boys who are members of gangs, only a few quantitative studies have analysed the involvement of girl gang members in delinquency and its link with victimisation. In this study, the prevalence rates of girls who are members of gangs in Italy and in Switzerland are shown. We compared the Italian data (N = 5.784) and Swiss data (N = 3.459) from the second wave of the International Self-Reported Delinquency Study (ISRD-2); the population used for this comparison was made up of teenagers from the ages of 13 to 16. Members of deviant youth groups accounted for 5.7% of the Italian sample and 4.7% of the Swiss sample; in both countries, about a third of gang members were girls. In general, girls who are members of gangs commit more delinquent acts than both girls and boys who are not members of gangs. Girl gang members are also more often victimised than girls and boys who are not members of a deviant youth group.