Arbitration
under Tax Treaties
International Fiscal Association – India Branch Northern Region Chapter
Delhi – 11 February 2012 Marcus Desax
Walder Wyss Ltd.
– The need for tax treaty arbitration – Genesis of tax treaty arbitration
– Legal nature of tax treaty arbitration under the OECD Model Convention (2008)
– Procedure of tax treaty arbitration under OECD Sample Mutual Agreement on Arbitration
– Appraisal of tax treaty arbitration – Personal final remark
Overview of presentation
The need for tax treaty arbitration
While they contain substantive rules …
… they lack compulsory rules of enforcement.
The problem with tax treaties
– Avoidance of double taxation not guaranteed.
– No active involvement of the taxpayer.
– Opaque decision‐making process.
– Length of procedure.
Drawbacks of Mutual Agreement
Procedure under tax treaties (MAP)
Tax treaty arbitration supported by:
– International Chamber of Commerce (ICC), Commission on Taxation
– International Fiscal Association (IFA) – various legal writers
– various Governments
The need for tax treaty arbitration
Genesis of tax treaty arbitration
2008 amendment of OECD Model Tax Convention providing for arbitration supplementary to MAP
– 30 January 2007: OECD Committee on Fiscal Affairs published Report „Improving the Resolution of Tax Treaty Disputes“.
– 17 July 2008: OECD Council adopted new paragraph 5 of Article 25 Model Convention, amended the
Commentary to Article 25 and provided a „Sample Mutual Agreement on Arbitration“.
Genesis of tax treaty arbitration
3 November 2011: United Nations Committee of Experts on International Cooperation in Tax Matters adopted an update of UN Model Double Taxation Convention
between Developed and Developing Countries providing, among others:
– for mandatory binding arbitration (for countries
wishing so) when a dispute cannot be resolved under the usual Mutual Agreement Procedure.
Genesis of tax treaty arbitration
Legal nature of tax treaty arbitration
under the OECD Model Convention (2008)
Where, under paragraph 1, a person has presented a case to the competent authority of a Contracting State and the competent authorities are unable to reach an agreement to resolve that case pursuant to paragraph 2 within two years from the presentation of the case to the competent authority of the other Contracting State, any unresolved issues arising from the case shall be
submitted to arbitration if the person so requests. These unresolved issues shall not, however, be submitted to arbitration if any person directly affected by the case is still entitled, under the domestic law of either State, to have courts or administrative tribunals of that State decide the same issues or if a decision on the same issues has already been rendered by such a court or administrative tribunal. The arbitration decision shall be binding on both Contracting States and shall be implemented notwithstanding any time limits in the domestic laws of these States. The competent authorities of the Contracting States shall by mutual agreement settle the mode of application of this paragraph.
New paragraph 5 of Article 25 OECD
Model Convention (2008)
– Supplement to MAP, not an independant judicial remedy.
– Consequence: Arbitrators do not decide the case, rather, only the issues submitted to them.
Eventually, the competent authorities decide the case on the basis of the
arbitrators’ determination and close the MAP.
– Tax treaty arbitration differs from international
commercial arbitration and from arbitration under bilateral investment treaties („BITs“).
– Tax arbitration is mandatory, no prior authorization by competent authorities is needed.
Tax treaty arbitration
– Distinction between issues and the case.
– Only unresolved issues are submitted to arbitration.
– Hence, pending the arbitration, competent authorities can always reconsider and decide unresolved issues.
– Only issues of actual cases may be submitted to arbitration.
Scope of the arbitration
– Locus standi to initiate arbitration two years after launch of MAP.
– No taxpayer involvement in selection of arbitrators;
they being appointed by the competent authorities.
– The Chair is appointed by mutual agreement of the competent authorities or, failing them, designated by the appointing authority.
– No right of the taxpayer to arbitration in the event of
„serious violation involving significant penalties“.
Extent and limitations of the taxpayer‘s
procedural status
– When initiating arbitration, taxpayer must certify that no court decision has been rendered on these issues.
– If these remedies are still, available, they must be suspended.
– If taxpayer rejects the determiniation by the arbitrators, he may pursue domestic remedies.
Relationship between tax treaty
arbitration and domestic remedies
Procedure of tax treaty arbitration under OECD
Sample Mutual Agreement on Arbitration
– At the earliest two years after start of MAP, taxpayer may initiate arbitration.
– Request in writing filed with one competent authority accompanied by statement that no court decision has been rendered.
The taxpayer’s process
– Within three months after receipt of the request for arbitration, the competet authorities shall agree on issues to be decided and communicate the „Terms of Reference“ to the taxpayer.
– Within three months after issuance of the Terms of Refernce or four months after receipt of request for arbitration, each
competent authority shall appoint an arbitrator.
– If one arbitrator is not appointed, the taxpayer may request the OECD Director of Tax Policy and Administration to make
appointment.
– Within two months after their appointment, the arbitrators shall designate the Chair, failing them and upon request by the
taxpayer, the OECD Director of Tax Policy and Administration.
– The competent authorities may agree on streamlined arbitration.
The competent authorities’ process
– The arbitrators do not decide the case, only the issues submitted to them by the competent authorities.
– Preliminary issues already decided by the competent authorities are binding on arbitrators.
– The arbitrators have access to all information
necessary to decide the issues, including confidential one.
The arbitrators’ process
– The taxpayer may present his views in writing and, with the permission of the arbitrators, orally.
Participation of the taxpayer
– Decision to be rendered within six months after
declaration by the Chair that he has received all necessary information.
– Decision are taken by majority vote.
– Unless stated otherwise in the Terms of Reference, decision shall be motivated in writing and, with the
permission of the taxpayer, may be published in redacted form.
– Within six months after communication of the decision, competent authorities shall reach mutual agreement on the case.
Decision-making process
Appraisal of tax treaty arbitration
– Tax treaty arbitration does away with the generally recognized drawbacks of MAP:
– In contrast to MAP, arbitration always avoids actual double taxation.
– Taxpayer is actively involved in the process.
– The shaping of tax treaty arbitration as supplementing MAP avoids concerns in some countries that tax treaty arbitration may not be compatible with sovereignty.
Advantages of tax treaty arbitration
Personal final remark
«The hope may be expressed that India will insert an arbitration clause in its
newly negotiated double taxation avoidance agreements.»
Personal final remark
Marcus Desax
Marcus Desax, Partner
Dr. iur., M.C.L., Attorney at Law Direct line +41 44 498 95 05
marcus.desax@walderwyss.com