Vanistendael, Frans

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Transnational Courses and Transnational Components in Traditional Courses: Does It Work in Any Legal System, or in Any Course

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Penn State International Law ReviewVolume 23Number 4 Penn State International Law Review Article 75-1-2005Transnational Courses and TransnationalComponents in Traditional Courses: Does It Workin Any Legal System, or in Any CourseFrans VanistendaelFollow this and additional works at: http://elibrary.law.psu.edu/psilrThis Article is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International LawReview by an authorized administrator of Penn State Law eLibrary. For more information, please contact ram6023@psu.edu.Recommended CitationVanistendael, Frans (2005) "Transnational Courses and Transnational Components in Traditional Courses: Does It Work in Any LegalSystem, or in Any Course," Penn State International Law Review: Vol. 23: No. 4, Article 7.Available at: http://elibrary.law.psu.edu/psilr/vol23/iss4/7Transnational Courses and TransnationalComponents in Traditional Courses: Does itWork in any Legal System, or in anyCourse?Prof. Frans Vanistendael*I. The Basic Conditions for Transnational Courses or ComponentsTransnational courses or transnational components work only undera certain set of conditions:A. The purpose of the course is to give an overview, to give an insightin policy issues, to analyse the structure of a certain area of law, orto educate lawyers to look for solutions on an independent basis inother legal systems. If the purpose of the course is to give preciseand technical training in a narrow area of law (such as thereorganization regulations of the federal tax code) transnationalcomponents are not in order.B. The language in which the course is taught and the language of thetransnational component is also important. Both may beincompatible. There are still large areas of law of many legalsystems of which the legal concepts have not yet been translated.Many parts of Russian and Chinese law and many concepts of theselegal systems have not yet been translated into languages likeSwedish, Portuguese or Dutch. Using concepts of these othersystems will add to confusion rather than to clarity. (Ex. Thetranslation of cooperative society and company in Russian).The use of English may be deceptive, because of the impression thatwe now have enough material to illustrate most legal problems with* Frans Vanistendael is the Dean of the University of Leuven Law School inBelgium. He is also a co-founder of the European Law Faculties Association.PENN STATE INTERNATIONAL LAW REVIEWforeign examples in the English language. Nothing is further fromthe truth. The most successful areas for transnational componentsare those areas in which an effective international legal practice isdeveloping: international contract law, international arbitration,international taxation and international law "tout court," orinternational communication technology law.C. The transnational components used to illustrate a point must berelevant. Many legal systems are not very interesting to outsiders.Who is interested in Belgian, Armenian or Icelandic family law?The transnational components should be borrowed from a systemthat is widely used (ex. Common Law) or that representative of avery important legal tradition (the French Code Civil, Roman-Dutchlaw in South-Africa, or certain areas of Swiss law as a hybridbetween the French and German legal tradition).Conclusion: no transnational components please, when a teach theBelgian traffic regulations in a school of police officers in Brussels.There are many more situations in which transnational components are ofno use at all.II. Transnational CoursesA transnational course or a generic course is at best an introductoryraising the basic issues in a field of law. Courses at an advanced stageare less apt for purely transnational courses because they tend to go intothe more complex legal rules and concepts, unless these advancedcourses are set up as pure policy courses, because then the policycomparison becomes interesting, which often translates into policychoices for specific legal structures. To take my own field, taxation,such a course raises the following questions:- What and who are we going to tax if we want to set up a taxsystem?- Why is it that most countries use the same taxes: incometax, taxes on consumption (VAT, sales taxes, consumptiontaxes), excises, gift and inheritance taxes, taxes on realestate, import and export duties?- What is the difference between taxes and social securitycharges?- If we are setting up an income tax, do we tax individualsand legal entities?- What are the basic concepts of income and how do translateinto different categories of income? Should we distinguish[Vol. 23:42005] TRANSNATIONAL COURSES AND TRANSNATIONAL COMPONENTS 777between sources of income?- What is the relationship between personal income tax andcorporate income tax, should they be integrated or separatesystems?- What is the unit of taxation, the individual or the familyunit? How can we make taxation family neutral?- What is the relationship between social contributions andtaxation?- How do we deal with social benefits, should they beincluded in the tax base, or not?- What is the international scope of the tax jurisdiction? Dowe tax only within the national territorial limits, do we taxworldwide, do we tax on the basis of nationality orresidence of the beneficiary of the income, or on the basisof the location of the source of income.- What should be the basis to distribute national taxing powerat the international level?- If we have double taxation at the international level, how dowe reduce or eliminate it? Do we need to eliminate doublenon taxation?- At what rate do we tax, a flat rate or a progressive rate? Atwhat rate do we tax companies?- Do we tax capital gains, and if so do we tax them like anyother sort of recurrent income?- Is there a relationship between taxation of capital gains andgift or inheritance taxes?- How do we tax consumption? VAT, sales taxes other formof consumption taxes. Do we tax consumption at origin(basic excises) or at the stage of final consumption (retailsales tax)?- What is the role of customs duties?There are many more basic questions to be answered in such course. Butfrom the list it should be clear that all the answers to these questions canbe illustrated with a wealth of examples taken from foreign tax systems.If we explain why these different choices have been made in theseforeign tax system, we can better explain (or criticize) the choice whichwe have been making in our own system.The important consequence of such an approach is that graduatesfrom such a course will not be surprised that the national solution is notthe only road to legal salvation. They will be open to reforms andimprovements, because they have experienced in their course thatdepending on the policy objectives other systems may work as well.PENN STATE INTERNATIONAL LAW REVIEWIII. Transnational ComponentsTransnational components can be useful in advanced courses, whenthe purpose of the course is not narrow technical training. In a mergerand acquisitions course for instance it may be useful and fruitful tocompare for instance merger and acquisition techniques under U.S.company law and the European merger directive. In such a coursestudents will of course want to know what the basic and even thesophisticated U.S. rules are, but they may benefit from comparisons withthe European directives. The advantage of such a course is that it can beset up in accordance with the framework of the national system and fromtime to time references to the other systems can be made.IV. MaterialsApart from the conditions mentioned above adequate materials arethe key to success in transnational courses. Only very few colleagueshave such wide a view and understand that many languages, that theycan translate successfully so many foreign legal systems into their own.The two books that I know in the field of taxation are two co-productionswith U.S. editors and many foreign co-authors. Materials for truetransnational courses are always a collective transnational enterprise.Without adequate materials transnational courses tend to degenerate intoamateur excursions.Transnational components into a domestic course are easier toachieve, because the scope of the subjects is much narrower. It requiresa good understanding of foreign systems, but some goodwill fromforeign colleagues and a good copying machine make for adequatematerials of specific subjects. To be realistic this is the way one shouldstart in the hope that by the end of his career he will be able to edit andwrite (partially) the transnational course.[Vol. 23:4

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Transnational Courses and Transnational Components in Traditional Courses: Does It Work in Any Legal System, or in Any Course

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