The Fight over International Taxation of Multinational Corporations is Just Starting.

Posted on September 26, 2011 by Stuart Malawer
The I.R.S. is increasingly targeting cross-border bank transactions worth billions of dollars. The I.R.S. has increasingly denied foreign tax credits to U.S. multinational firms. These developments need to be assessed within the context of the global financial crisis of 2008, the ongoing crisis over European sovereign debt, the debate over raising capital requirements of global banks, the continuing OECD review of transnational taxation, and the recent Obama administration proposals to reform the taxation of multinationals generally. Needless to say, the fight over international taxation of multinational corporations is just beginning.
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New U.S. – China Trade Litigation in the WTO — Active Trade Litigation Continues.

Posted on September 22, 2011 by Stuart Malawer

Yesterday the Obama administration filed yet another action against China in the WTO dispute resolution system.  This complaint involves China’s antidumping and countervailing duties on the import of poultry from the U.S. This filing continues the aggressive enforcement actions first initiated during the Bush administration and built upon by the Obama administration. It’s a good idea to enforce global rules of trade. It’s also a good idea to settle trade disputes in a legal forum and not fight them out in newspapers, where they can spin out of control. I’ve recently reviewed the 10-year history of U.S.-China litigation in the WTO.  I concluded that both countries actually enforce adverse rulings fairly diligently. That’s good for the United States, China and the global trading system. United States-China WTO Litigation (2001–2010)
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International Investment — Federal and State Action Required to Create Jobs.

Posted on September 22, 2011 by Stuart Malawer

The authors of a new Council of Foreign Relations study on U.S. trade and investment policy states, “(T)he U.S. must, for the first time in its history, take serious measures to attract international investment …. (F)ederal, not just state-led, efforts to court foreign investors” are required for U.S. job creation. A. Card, T. Daschele, E. Alden and M. Slaughter, “A Pro-Trade Agenda for U.S. Jobs.” Wall Street Journal (September 17, 2011).They also recognize the great importance of multinationals in creating more jobs. The new study  is entitled “U.S. Trade and Investment Policy” (Council on Foreign Relations Report, Sept. 2011). Finally, proposals are being made that are really useful. Let’s see what happens.
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Foreign Investment, State Economic Development and Removing Disincentives — Very Necessary.

Posted on September 22, 2011 by Stuart Malawer

 

States need to follow an aggressive economic development policy focusing on attracting Foreign Direct Investment (FDI). States ought to assess their business and regulatory environments to ensure equal treatment for foreign corporations. The federal government ought to remove unnecessary legislative and regulatory barriers to foreign investment in the name of national security that promotes protectionism. The federal government should promote greater use of bilateral investment and tax treaties to encourage greater foreign investment. Foreign corporations and sovereign wealth funds have the money and desire to invest in the U.S., which is good for the U.S. job market.
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Trade Policy Under the U.S. Constitution — Is Congressional Supremacy Still Justifiable?

Posted on September 22, 2011 by Stuart Malawer

Stuart S. Malawer — Three International Law Books (Hein & Co.)

     Trade policy today is central to foreign policy. It is also crucial to domestic policy. The U.S. Constitution gave the job of regulating trade exclusively to Congress under Article 1, Section 8, Clause 3. But this was late in the 18th century, when trade was barely more than setting customs duties. Not of great popular concern. The Constitution gave great powers to the President in foreign affairs and they grew greatly over the next two centuries. This is the problem. In the 21st century trade has emerged as one of the most important foreign policy and domestic policy issues. Yet, the structural context of dealing with it is dated. What needs to be done?  Once trade was considered a bipartisan concern or even nonpartisan.  We need to turn back to this attitude. Doesn’t seem very likely.
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Trade Policy is Now Foreign Policy — Historical Growth in Importance.

Posted on September 22, 2011 by Stuart Malawer
Stuart S. Malawer — U.S. NATIONAL SECURITY LAW (2009)

Trade policy today is central to foreign policy. It is also crucial to domestic policy. The U.S. Constitution gave the job of regulating trade exclusively to Congress under Article 1, Section 8, Clause 3. But this was late in the 18th century, when trade was barely more than setting customs duties. Not of great popular concern. The Constitution gave great powers to the President in foreign affairs and they grew greatly over the next two centuries. The problem is this. In the 21st century trade has emerged as the most important foreign policy and domestic policy issue. Yet, the structural context of dealing with it is dated. What needs to be done? Once trade was considered a bipartisan concern or even nonpartisan. We need to turn back to this attitude. Is this likely? Not sure.

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Trade Linked to Investment by China — The New High Politics?

Posted on September 22, 2011 by Stuart Malawer

 

     China has recently linked investment into the EU to help solve its debt crisis, to trade demands. In particular, China wants the EU to reclassify China as a “market economy” for purposes of trade remedy litigation under the rules of the WTO. Specifically, this demand would require dropping the “constructive approach” utilizing third-market prices in determining the home market-price of goods in China, in favor of actual prices in China. This proposal would make it much harder for the EU to impose unilaterally antidumping duties under the WTO rules of global commerce. This development clearly illustrates the rising importance of trade to investment decisions in the context of high politics between major trading states. As if we really needed another example. Even the National Intelligence Council concluded last year that strategic rivalries in the future are most likely to revolve around trade and investment disputes.
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Multinational Tax Proposals — From Global to Territorial?

Posted on September 22, 2011 by Stuart Malawer

Stuart S. Malawer, FEDERAL REGULATION OF INTERNATIONAL BUSINESS (U.S. Chamber of Commerce)

The need to reform the global taxation of U.S. multinationals corporations by the I.R.S. is obvious. The need to repatriate overseas earnings and put them to use in the U.S. to create jobs is long overdue.
Most trading countries have a territorial tax system. The U.S. needs to adjust its global system so we can become more competitive and alleviate excessive tax avoidance. If done properly this will help immensely in job creation by unlocking hundreds of millions of retained earnings in overseas funds held by multinationals in unproductive accounts.
The importance of international corporate tax reform is often illustrated by the failure of our multinational firms, especially high-tech ones relying upon intangible transactions involving patent and licensing fees, from paying corporate taxes due to their global transactions being routed through multiple tax havens.
This and related tax issues such as transfer-pricing, tax havens, bank secrecy, foreign source income, worldwide tax system really need to be debated during this presidential election season.
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