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Abstract:
Why do countries follow the rules they do for international taxation? Tax scholarship is increasingly using terms like hard law and soft law to explain the degree of global adherence to various tax practices. In this brief essay, I make the case that terms we use are important because they convey something about how tax norms are being formed and how nations will or should behave in response. Using a term such a customary or soft law may connote a method by which key players working within transnational networks achieve supranationalization of particular tax norms outside of conventional mechanisms (e.g., treaties). As such, the description is an important signal about expectations for participation, inclusiveness, and compliance in the development and diffusion of international tax law.

tax policy, tax norms, norm diffusion, customary law, international law, soft law, soft power, transnational networks, supranational organzations, OECD, harmful tax practices, participation, legitimacy

Abstract:
Tax treaties are believed to increase cross-border trade and investment by reducing international tax burdens. The pursuit of tax treaties is therefore advanced as an integral component of U.S. foreign aid policy, which increasingly favors indirect assistance in the form of fostering trade and investment over traditional direct assistance in the form of donor funding. The importance of tax treaties is especially advanced in the context of U.S. relations with Sub-Saharan Africa, where poverty-related conditions are extreme and foreign trade and investment minimal. Yet despite many years of consistent promotion there are currently no tax treaties between the United States and the developing countries of Sub-Saharan Africa. This article explains the apparent contradiction by presenting as a test case a hypothetical tax treaty between the U.S. and Ghana. The case study illustrates that in today's global commercial climate, traditional tax treaties provide few tax benefits to and indeed may negatively impact private investors. Consequently, the continuing absence of tax treaties can be explained by the lack of incentives for private investors to pressure the U.S. government to conclude these agreements. This article concludes that means other than increasing the international network of tax treaties must be pursued if the goal to increase trade and investment to developing countries is to be achieved.

Fiscal Policy, Public Expenditures Investment and Finance, International Taxation

Abstract:
This essay makes a proposal that might be controversial among tax scholars even if it is non-controversial to those with a particular interest in international law: that international social and institutional structures shape, and are shaped by, historical and contemporary domestic policy decisions. As a result, tax law scholars must seek a broad framework for understanding the rapid changes that are taking place in tax policy and politics. Our aim in this essay is to further an emergent dialogue between tax law scholars and international law scholars about how law and institutions evolve and interact in a globally integrated system. We do so by offering four lines of inquiry that incorporate the lessons from multiple areas of scholarship, including international relations theory, sovereignty theory, political philosophy, political economy, and behavioral game theory, so as to begin to understand the changing pressures on taxation that are emerging as a result of the increasingly complex relationship between states, markets, and people in a globalized world.

taxation, international law, international relations, globalization, law and institutions, global governance

Abstract:
National tax policy is one product of the classic Lockean social contract between individuals and government. But countries are now so economically interdependent that one nation's tax policies can profoundly undermine another's attempts to implement the bargain. This article argues that tax experts from the United States and its peer countries are implicitly drafting a transnational social contract that potentially constrains national tax policy bargaining. I identify the existence and terms of this implied contract, analyze it from a political philosophy perspective, and argue that meaningful debate about tax policy must address how principles arise and are implemented as well as whether the chosen principles are appropriate. I conclude that if an international social contract exists, its terms should be explicitly articulated so that national responsibilities to the international community can be acknowledged and confronted in domestic tax policy deliberations.

sovereignty, taxation, globalization, global governance, international relations, social contract theory, cosmopolitanism, international regulation, international organizations, transnationalism, international tax, political philosophy, tax policy, tax norms, norm diffusion, soft law, transnational

Abstract:
The employee dispatched by her company to work temporarily in international destinations is not a new phenomenon, but social structures between which the worker may move have arguably never been more complex. In a world of social insurance programs that feature broad contribution requirements coupled with limitations on benefits, global workers may be required to contribute in multiple jurisdictions, yet be eligible for benefits in none. Having introduced its own social insurance program in the 1930s when workers were much less likely to be sent on temporary cross-border assignments, the United States social security system has had to adapt to the increasingly international workforce. Adaptation has occurred over the last two decades in the form of coordination of taxes and benefits through treaty-like instruments called executive agreements. However, some matters of social security taxation, like other tax matters, have traditionally been addressed in income tax treaties. This article examines the role of tax treaties and executive agreements in the administration of the United States social security program, discusses some of the conflicts and issues that arise due to the use of multiple and potentially conflicting instruments, and suggests ways in which international coordination of social security could be improved in the United States.

Social security, taxation, treaties, executive agreements

Abstract:
Social security is a fundamental part of workers' lives in three spheres: contributions are required, benefits are hoped for, and taxes on benefits may have to be paid. If a worker splits a career between several countries, each of these three spheres is affected. The United States has sought international coordination through a combination of treaties and executive agreements that address the three spheres in various ways. The result is a group of overlapping and potentially dueling agreements that may raise interpretational issues and create uncertainty for workers and administrators. This article argues that international social security coordination could be improved and possibly expanded through a clearer delineation of the spheres in existing and future international agreements.

taxation, social security, international, global, labor, payroll

Abstract:
One of the themes of this symposium issue is to explore the limits and possibilities of law and legal institutions in redressing poverty and economic inequality. This essay approaches the question by considering the ways in which domestic tax policy interacts with internationally-recognized human rights. I suggest that focusing on human rights jurisprudence could change the conventional balance among the tripartite of equity, efficiency, and simplicity principles that constitute traditional tax policy analysis. Accordingly, I propose that we may appropriately evaluate tax law and legal institutions according to whether they protect or undermine human rights, as a means of opening up new ways of tackling old and entrenched tax policy issues.

taxation, tax policy, fairness, equity, efficiency, human rights, international taxation, UNDHR, ICCPR, ICESER, economic and social rights, access to necessities, deferral, multinational, neutrality, subpart F

Abstract:
Global economic crisis demonstrates how critical it is for nations to determine ways to solve problems cooperatively. Tax experts have traditionally facilitated cooperation by participating in transnational networks, where they compare ideas and reach consensus on how nations can tax effectively. But while the merits of the norms developed by these tax networks have prompted much scholarly analysis, little is understood about the nature and function of the networks themselves. This Article argues that participants in networks use "soft law" mechanisms such as shared expertise, voluntary cooperation, and emulation to achieve tax policy convergence while preserving national autonomy. It analyzes how networks facilitate this convergence by drawing upon the institutional structure and processes of norm development and by examining evidence of the functionality of networking in U.S. law-making. It concludes that understanding why and how we use networks to produce tax norms is critical to ensure that law-makers have the tools necessary for developing effective national tax policy in a globalized world.

Abstract:
Through decades of tax reform and cross-border collaboration, the world's wealthiest countries have adopted domestic tax policy norms that meet their mutually beneficial interests. But these norms have introduced rigorous change and increasingly rigid parameters for tax policy in the world's poorest countries. While much scholarly attention is devoted to identifying tax strategies that poor countries could or should adopt in response to global tax trends, relatively little is paid to the process through which these trends developed and how they constrain alternative policy choices. This article argues that many of the biggest challenges to taxation faced by the world's poorest countries are a reflection of the international community's failure to consider the impact of their tax policy consensus on these vulnerable nations. It concludes that the world's wealthiest nations should unleash the global constraints on tax policy by reforming their own approaches to taxation.

tax, tax policy, global tax policy, tax reform, cross-border, domestic tax, international, norms, change, tax strategies, tax trends, tax policy consensus, constraints, free trade, international tax, taxation of capital, VAT, value added taxation, consumption taxation, developed countries