MNC

This blog provides an alternative approach, described as a potential abusive tax avoidance (PATA), to evaluate incidences of illicit financial flows (IFFs) in Africa. By way of a working definition, PATA arises when there is a greater probability that a proposed tax legislation is susceptible to abusive tax avoidance. The abuse contemplated under the PATA is similar to Steve Dean’s argument of how considerable degree of taxpayer autonomy– under the guise of tax deregulation - can negatively impact a nation’s tax system. PATA provides a complimentary mechanism to examine how a proposed international tax framework can result into IFFs. The author undertakes this analysis using the global minimum tax proposed by the OECD to address the tax consequences of the digitalized economy.

Dr. Oyeniyi Abe’s book, Implementing Business and Human Rights Norms in Africa: Law and Policy Intervention, is a timely intervention in the field of business and human rights. The book focuses on interpreting and implementing the United Nations Guiding Principles on Business and Human Rights (UNGPs) in Africa through legal and policy frameworks.

Abe’s book discusses the challenges associated with the utilisation of business and human rights principles in development projects in Africa using South Africa, Kenya and Nigeria as case studies. The author uses the United Nations Guiding Principles on Business and Human Rights (UNGPs) as a benchmark in making a case for human rights approach in the implementation of development projects in Africa. The author highlights the legal challenges of business and human rights in the extractive industry while underscoring the increasing significance of the implementation of a human rights approach in corporate governance regimes in the spotlighted nations. Many economies in Africa are heavily dependent on telecommunication, energy, extractives and the financial industries. Corporations in these industries often undertake activities with significant social, environmental and human rights implications.

The discourse on corporate accountability for human rights violations has been shaped to a great extent by the United Nations Guiding Principles on Business and Human Rights (UNGPs) (UNGPs), resulting from the work of John Ruggie, the UN Secretary-General’s Special Representative for Business and Human Rights. The UNGPs were endorsed by the UN Human Rights Council in June 2011 and rest on three pillars: the State duty to protect against human rights violations; the corporate responsibility to respect human rights in their operations; and greater access by victims to effective remedy, both judicial and non-judicial, for human rights violations. While the focus on the second pillar i.e. the corporate responsibility to respect human rights is increasingly scrutinized, it has mostly been done in Western academic contexts. A long overdue African perspective on what this second pillar means and entails, is starting to take shape given that the African continent continues to be the breeding ground for many human rights atrocities attributed to corporations. In this respect, Abe’s book is a meaningful welcome contribution from the legal perspective on these issues.

African countries should consider alternatives to the arm’s length principle. A viable alternative to the arm’s length principle: the unitary taxation (formulary apportionment) approach should be considered. This approach looks in detail at the economic activities resulting into the profits of MNCs for tax purposes. Under this approach, tax authorities in Africa will justifiably impose corporate income taxes on “actual” profits of MNCs accruing form economic activities carried out in their jurisdictions, thereby eliminating the opportunities for base erosion and profit shifting in Africa.