Noam Noked (The Chinese University of Hong Kong) has published “‘Congress-Proof” International Tax Reforms,” 100 Tulane Law Review 701 (2026). Here is the (slightly shortened) abstract:
Reaching multilateral agreements on legal reforms to address transnational problems is a formidable challenge. This task is further complicated by the structure of U.S. policymaking, where Congress may reject or actively undermine international legal standards that were established with the support of the U.S. administration. A recent example of this is the so-called “global tax deal.” The previous U.S. administration played a crucial role in reaching what then-Treasury Secretary Janet Yellen described as a “historic agreement on new international tax rules,” which was endorsed by over 130 jurisdictions. This agreement aims to reform the international taxation of large multinational enterprises (Pillar One) and introduce a groundbreaking global minimum tax (Pillar Two). However, since the announcement of the agreement, Congress has blocked one of these reforms and sought to derail the other.
Given this reality, how can the international community develop and implement effective international legal standards? . . . . The Article examines three strategies used in the legal design of the relevant reforms. The first strategy involves establishing a legal standard that the U.S. administration can implement within the existing legal framework, thereby eliminating the need for congressional action. The second strategy focuses on minimizing the negative consequences of U.S. nonparticipation by ensuring that congressional inaction cannot prevent the international rollout of the legal standard or undermine its effectiveness. The third strategy aims to create incentives for the U.S. government and relevant stakeholders to adopt the reform. The Article evaluates these strategies and their effects, including their impact on the negotiation, adoption, and implementation of international reforms. It also discusses concerns related to extraterritoriality, treaty violations, legitimacy, and retaliatory actions.
