Category Archives: Law: Everything Else

News reports suggest that Yasser Arafat retains sole control of a large number of Swiss bank accounts, and that his extreme ill health is setting off a struggle to control them. I will leave it to others to opine on the geo-political implications of Arafat's death, and of the political consequences flowing from control of the money.

Instead, in the spirit of professional deformation, I want to speculate about the somewhat hypothetical legal issues of inheritance, keeping in mind that all I know about the subject I learned for the bar exam and then mostly forgot right away.

First, did Arafat leave a will? On this, we have basically no reliable information: Who will get Arafat's millions? / Wife is fighting Palestinian officials for assets, Arab TV reports states that:

According to Al-Jazeera, Arafat had written a will leaving at least some of his fortune to his wife and their 9-year-old daughter Zahwa, but other reports said Arafat has no will, leaving most of his fortune in the hands of Rashid.

I suspect that if in fact Arafat has no will, the question is not nearly that simple if only because to know the disposition of the estate we have to decide what law applies. Here we have a non-Israeli Arab, living in the occupied territories, dying in France, with assets in Switzerland. The courts in the place where the money is will usually have to decide disposition of a disputed asset, but they will frequently look to the law that applies to the estate. Ordinarily, in most countries, the law of the domicile of the decedent will apply, but I have no idea what testamentary law applies in the occupied territories: Is it Israeli law (which would look to Muslim, Quranic law for Muslim decedents)? Is it British Mandate law (which oftentimes incorporated Ottoman leftovers including Quranic elements)? Or have the territories somehow adopted their own rules, in which case one must ask whether the Swiss would recognize them?

If some form of Quranic law applies, then I'm not sure that things look so good for Rashid, especially if there is no will. According to this summary by the International Tax Planning Association,

In Israel, Islamic law is applied to some degree to Muslim citizens¹ in Islamic courts. …

The core Islamic rules of succession, however, are essentially similar in all Muslim countries. A Muslim does not have testamentary freedom: at least 2/3 of his estate must pass in accordance with the rules. The Sunni and Shia rules have some differences (the Shia Muslim may bequeath property to an heir, a Sunni Muslim may not), but the Sunni Hanafi rules apply to a majority of Muslims – including those in Israel. …

Daughters are the main beneficiaries. The wife (or husband) takes a share, as do children, parents and siblings, but no share is given to a son or full brother. Minor children (generally under 15) require a guardian, normally male.

…A will may be valid as regards 1/3 of the estate, and it cannot contain a bequest to a person who inherits under the law – though this rule has been modified in some countries where the Shia view is applied.

There is of course a further wrinkle: if there really are millions upon millions in the Swiss accounts it's easily arguable that much of the funds were held in constructive trust for Fatah, the PLO, or the Palestinian Authority — although deciding which one of these gets how much could be tough. Common law countries are comfortable with the idea of constructive trusts, and my understanding is that concepts with the same effect exist in civil law countries. But whether and how robustly they exist in Islamic law, I simply don't know.

(There's also the issue of what happens if Arafat takes the knowledge of the existence of some of the accounts to his grave without being able to tell anyone. Under Swiss law does the bank have any duty to seek out heirs? They will presumably hear when he's dead, but if the account is fully anonymous they may not (officially) connect the pile of money with Arafat. Does it just sit there? Escheat?)

¹ I understand that Arafat is not an Israeli citizen under Israeli law (indeed, he may not even be a legal resident of the territories under Israeli law for all I know). I quote this text as probative of the content of Quranic law, which I gather is more or less the same whether applied through its reception into Israeli family law or by other means.

Anupam Chander (who is both a blogger and Professor of Law at the University of California, Davis, School of Law) and JD student Ryan Walters have designed a little web site they call the Supreme Court Survivor game. Their objective is “to highlight the importance of the 2004 presidential election to the preservation of civil liberties in this country.”

Anupam, a charming person whom I met at a conference not so long ago, wrote me a nice note asking me to publicize it, so here it is.

There's no doubt that the next President will shape the court for a long time: there are liberal, conservative and fence-sitting Justices who are likely to retire. But, cute as it is, I have to wonder whether this game is entirely in good taste, and if as a pure tactical matter it's the best tool to raise consciousness about this critical issue. It seems to me that there's some danger it might backfire given the Chief Justice's coincidental illness.

Meanwhile, if there's an easter egg in there, I can't find it.

Update: When you tire of that one, and still want a political online game, you can play Enjoy the Draft's Spring Break Fallujah: The Game. I am still stuck on the first level, myself.

Sharp-eyed Eric Muller notices something strange:

A Full and Appropriately Speedy Recovery

I wish Chief Justice Rehnquist a full and speedy recovery.

On the subject of “speedy,” though, I find it curious that the Court is already telling us that he'll be back at work next Monday, about 8 days after his tracheotomy. Not only is it hard to imagine how anyone could know how the Chief will actually be feeling by next Monday, but the ordinary recovery period for a case without special risk factors or complications is two weeks. And there are reasons to suspect that the Chief's is not an entirely ordinary case. Plus he's 80 years old.

Odd, that.

4-4 on 11-02-04?

Not if this Chief can help it. Then-Justice Rehnquist, it may be recalled, was the author of an opinion, Laird, Secretary of Defense v. Tatum, 409 U.S. 824, 837 (1972) (Rehnquist, J., mem.), explaining his non-recusal despite his personal involvement in some of the matters at issue, on the grounds that Justices should be less willing to recuse themselves on the grounds of conflict of interest if the case is really important — precisely the sort of cases where others might ordinarily think recusal was most called for….

At least his doctors may be pleased that their patient has a powerful incentive to get better quickly.

Boing Boing: Monsanto stole patented wheat from Indian farmers:

Cory Doctorow: Monsanto had taken out a patent for a “genetically modified” strain of wheat. Today, they lost that patent in Europe, after Greenpeace proved that the wheat in question had in fact been selectively bred by Indian farmers and had not emerged from Monsanto's labs.

The European Patent office in Munich had granted a patent to Monsanto on May 21, 2003. The patent covered wheat exhibiting a special baking quality that Monsanto claimed to be its invention.

However, Greenpeace proved in its opposition that the wheat variety was bred by Indian farmers for improving its baking quality and it was not a genetically-engineered invention as claimed by Monsanto.

Link

I hope this sort of theft of intellectual property is a criminal offense in the EU.

This sounds like a plausible argument to me, but it's not at all my field:

Arizona LP files suit to stop state funding of presidential debate: Arizona Libertarians have filed a lawsuit that could stop Arizona State University from sponsoring the third presidential debate between George Bush and Sen. John Kerry, scheduled for Oct. 13. The lawsuit maintains that by spending up to $2 million to sponsor the event in Tempe, the university is making an illegal campaign contribution to the Republican and Democratic parties.

“It's a clear case of misusing state funds,” said David Euchner, attorney for the Arizona Libertarian Party (AZLP).

“Arizona recognizes three political parties,” Euchner continued. “A debate which included all three of those parties would be a legitimate expenditure on education and public information. A debate including only two of the three candidates is a partisan campaign commercial — and an illegal donation to partisan political associations.”

Having said it's plausible, if the money has been paid over, I don't see what they can do about it except set an Arizona precedent for any next time, unless Arizona has funny third-party restitution laws. But if the money hasn't been paid over…

Barring surprises, back to international taxation, particularly expatriate US corporations, tomorrow.

Today, I want to write about the financial accounting when a corporation pays an executive with stock options. This is not a new topic, and I have nothing new to add to the debate, but it is important, and the issue is hot again, as to be discussed below.

Continue reading →