Great article, thank you for all your writing. Working in Tokyo, I have what might be a useful counterexample on this take: *”This is a painfully common dynamic in corporate law. For example, multinationals routinely practice tax avoidance right up to the legal line of tax evasion. They can prove with audited books that what they’re doing is legal, even if it clearly undermines the spirit of the law.”*
Experience adjacent to the Japan National Tax Authority has taught me that they are far more likely than Western tax authorities to sanction companies walking up to the line with “tax mitigation”. They do this with a combination of ambiguous lines (rather than bright lines), and unilateral decisions about when a violation of the spirit of the law is an actual violation of the law, regardless of the law’s text.
The downside of this approach would be potential for corruption and lack of stability. But this is entirely mitigated by (1) the NTA’s professionalism and (2) the NTA’s general willingness to publish Q&A explainers (with Qs posed by corporate counsel) on the NTA’s approaches to tax—none of which are binding on NTA decisions if they contain loopholes exploited in bad faith, but all of which are respected and taken seriously for the effort put into them.
A hypothetical AI Authority that took its idea of authority seriously, could act in similar ways: compasionate to the concerns of AI companies in understanding the rules, but rutheless in upholding the spirit of an AGI prohibition.
This is very useful! I admit that this sort of argument (like with data privacy or consumer protection in general) requires different approaches for different cultures. Still: “unilateral decisions about when a violation of the spirit of the law is an actual violation of the law, regardless of the law’s text”.
So, is this an ex post, quite subjective decision each time? Or do they just treat all forms of tax avoidance as tax evasion? From an European position, I just do not see this working without strict liability, but I have recently seen an interesting debate (AI Safety ASIA, CAIDP) on Japan’s approach to AI regulation being more trust-based, so I get where you are coming from.
But from a multinational perspective, that is kind of part of the problem? Part of the strategy I was explaining is offshoring assets, processes, people- to parts of the world with less rigid regulation. I really do not want a ban to fail because companies just start moving their most dangerous capability development projects “offshore”…
Indeed, on global scale the Anti-Whatever Weapons Might End Humanity (Anti-WW MEH!) would require global enforcement power to catch “off-shoring”. But that’s true of any global treaty!
So, is this an ex post, quite subjective decision each time? Or do they just treat all forms of tax avoidance as tax evasion? It’s a holistic decision each time taking account of everything. This is how works with almost all things we learn in law school—most obviously in criminal cases: mens rea sometimes seems to apply from sheer recklessness; an imprisonment sometimes comes out as assault & battery even when there’s nothing physical about it; a killing sometimes comes out as self-defence even when its premeditated. It’s only in corporate-backed actions that some legal cultures have evolved an idea that predictability is paramount and so bad faith loopholes are totally fair and reasonable to exploit until they’re patched.
(Notably, multinationals are not fond of the Japanese legal system.)
(Also, notably, an overreliance on rigid black letter law was the origin of common law equity in the 14th-16th C.)
I was about to ask “do you have a legal background?” as you’ve consistently offered really good explanations of legal concepts in your comments. I’ve seen in your profile that you are a lawyer. That is great, I’d love to connect outside LW too :).
I don’t know a lot about the Japanese legal system, but I have heard the “multinationals not fond of it” before.
My guess is that the need for that enforcement power to catch offshoring will be what cements the need for strict liability. How this translates to the particular requirements of the Japanese legal system is something I don’t know. But I’d love to keep learning. Thank you very much for your comments!
tl;dr—A treaty that credibly banned “whatever weapons might end humanity” and enforced by the Japanese (or at least the Japanese national tax authority) would, I think, have a strong chance of achieving the desired objective.
Great article, thank you for all your writing. Working in Tokyo, I have what might be a useful counterexample on this take: *”This is a painfully common dynamic in corporate law. For example, multinationals routinely practice tax avoidance right up to the legal line of tax evasion. They can prove with audited books that what they’re doing is legal, even if it clearly undermines the spirit of the law.”*
Experience adjacent to the Japan National Tax Authority has taught me that they are far more likely than Western tax authorities to sanction companies walking up to the line with “tax mitigation”. They do this with a combination of ambiguous lines (rather than bright lines), and unilateral decisions about when a violation of the spirit of the law is an actual violation of the law, regardless of the law’s text.
The downside of this approach would be potential for corruption and lack of stability. But this is entirely mitigated by (1) the NTA’s professionalism and (2) the NTA’s general willingness to publish Q&A explainers (with Qs posed by corporate counsel) on the NTA’s approaches to tax—none of which are binding on NTA decisions if they contain loopholes exploited in bad faith, but all of which are respected and taken seriously for the effort put into them.
A hypothetical AI Authority that took its idea of authority seriously, could act in similar ways: compasionate to the concerns of AI companies in understanding the rules, but rutheless in upholding the spirit of an AGI prohibition.
This is very useful! I admit that this sort of argument (like with data privacy or consumer protection in general) requires different approaches for different cultures. Still: “unilateral decisions about when a violation of the spirit of the law is an actual violation of the law, regardless of the law’s text”.
So, is this an ex post, quite subjective decision each time? Or do they just treat all forms of tax avoidance as tax evasion? From an European position, I just do not see this working without strict liability, but I have recently seen an interesting debate (AI Safety ASIA, CAIDP) on Japan’s approach to AI regulation being more trust-based, so I get where you are coming from.
But from a multinational perspective, that is kind of part of the problem? Part of the strategy I was explaining is offshoring assets, processes, people- to parts of the world with less rigid regulation. I really do not want a ban to fail because companies just start moving their most dangerous capability development projects “offshore”…
Indeed, on global scale the Anti-Whatever Weapons Might End Humanity (Anti-WW MEH!) would require global enforcement power to catch “off-shoring”. But that’s true of any global treaty!
So, is this an ex post, quite subjective decision each time? Or do they just treat all forms of tax avoidance as tax evasion?
It’s a holistic decision each time taking account of everything. This is how works with almost all things we learn in law school—most obviously in criminal cases: mens rea sometimes seems to apply from sheer recklessness; an imprisonment sometimes comes out as assault & battery even when there’s nothing physical about it; a killing sometimes comes out as self-defence even when its premeditated. It’s only in corporate-backed actions that some legal cultures have evolved an idea that predictability is paramount and so bad faith loopholes are totally fair and reasonable to exploit until they’re patched.
(Notably, multinationals are not fond of the Japanese legal system.)
(Also, notably, an overreliance on rigid black letter law was the origin of common law equity in the 14th-16th C.)
I was about to ask “do you have a legal background?” as you’ve consistently offered really good explanations of legal concepts in your comments. I’ve seen in your profile that you are a lawyer. That is great, I’d love to connect outside LW too :).
I don’t know a lot about the Japanese legal system, but I have heard the “multinationals not fond of it” before.
My guess is that the need for that enforcement power to catch offshoring will be what cements the need for strict liability. How this translates to the particular requirements of the Japanese legal system is something I don’t know. But I’d love to keep learning. Thank you very much for your comments!
tl;dr—A treaty that credibly banned “whatever weapons might end humanity” and enforced by the Japanese (or at least the Japanese national tax authority) would, I think, have a strong chance of achieving the desired objective.