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Legal Academic Says Caribbean Jurisdictions Can Fight EU On Tax, London

05 December 2002

While cash-strapped OECD nations make every effort to extract ever-greater amounts of tax from their citizens, other jurisdictions have preferred to attract business and investment through offering low-tax regimes. Their success has driven the OECD, the EU and other multinational groupings into aggressive moves to restrict their freedom to compete, often cloaked in the moral imperatives of anti money-laundering, terrorist financing and tax fraud. On the whole, the low-tax territories have defended themselves, if at all, with a mixture of complaisance and bloody-mindedness; but the verdict has to be that they haven't succeeded in gaining either a moral or a practical ascendancy over their tormentors. Some players, however, have gone further, and are developing a legally-based challenge to the strong-arming tactics of the fat-cat nations.

Prominent among the legal mechanics is Dr. Gilbert NMO Morris of The Landfall Centre for Finance, Trade & International Affairs in the Bahamas. Last week, Dr Morris expressed support for the British Protectorate Territories - Cayman, Turks & Caicos and The Virgin (BVI) Islands, Andorra, Montserrat and Anguilla - in their efforts to resist British demands that they submit to the EU Savings Tax Directive. Dr. Morris said: "Recently, the US rejected participation in the EU scheme, which suggests its demise. However, EU officials, through Britain are attempting to force the protectorate territories to capitulate in order to regain momentum. The strategy is quite risky."

"The EU-British approach must be observed and examined with some concern", said Dr. Morris. "It appears that since they could not get America or Switzerland to go along, and could not convince Liechtenstein or Monaco to comply, they have opted for "soft targets" to strengthen their lonely efforts against Switzerland. Britain itself may be acting under a need to show solidarity with its EU partners, given its independence on monetary union and so forth".

Mr. McKeeva Bush, the Cayman political leader has said that he and his colleagues are resolved to go to the European or International Court of Justice. Asked about their chances Dr. Morris said: "My colleagues and I have put this suggestion more than two and one half years ago. Already, there is a growing jurisprudence on this question in Canada (See: Law Society of Canada v. The Attorney General of Canada (2001)) and at the House of Lords (See: R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax (2002); although these cases deal specifically with only a portion of the menu of issues, most notably whether lawyers should be subject to "Know Your Customer" compliance regimes and the extents of Legal and Professional Privilege.

"We have a case in the Bahamas, The "Glinton-Esfakis Case" in which the whole of the matter relating to cross-border financial services regulations and arbitrary
multi-jurisdictionality by international bodies is to be tried," Dr. Morris said. "I find commonality with the recent comments of Mr. Robert Livingston that Cayman should look to linking its cause to other nations. However, there are some technical issues which must be worked out. First, Offshore Financial Centres must quit asking 'why Switzerland can get away with not complying and they can't'. That is not the way to defend a principle. Secondly, the UN will be of little assistance to them, since it is seeking to replace nation states as a universal tax authority.

"Third, they must fight this not on "unfairness" grounds, but must see themselves as contributing to a new international jurisprudence. For instance, in their attempts to show the error of the British imposition against themselves they should look at the fundamental rights provisions of their constitutions which are on all fours with the European Convention on Human Rights. Additionally, they should look at Articles 50 and 52 of the Vienna Convention on Treaties 1969 respecting invalidity of treaty agreement secured by force and finally, also given their unique status amongst the community of nation-states the territories should have regard for some of the Australian Cases on national Aboriginal rights (Nation-within-a-Nation-rights).

"Altogether, these grounds thicken the flimsy unfairness approach and deals with the matter as a ground breaking question about power and authority in international relations". Dr. Morris added: "OFCs must discover that these questions do not deal with their banking sectors alone. We struggle here for the economic and political philosophy of the future. In fact, the impositions of the EU may breach Jus Cogens rules at international law, since they go to the root of the livelihood and culture of the OFCs, and practices which are still valid even in places such as Britain. I think the obvious way forward is what I and my colleagues argued four years ago, the OFCs should merge into a sort an international consortium and self-regulate. And whilst I think the US position - which my colleagues and I helped to cultivate - is encouraging, US officials will not design the parameter of defensive action for OFCs. The grounds of their defense, as well as the substance and political sustainability must be worked out by themselves."

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