Should Taxpayers Have Access to the International Tax Arbitration Procedure?

2018 ◽  
Author(s):  
Gilda Almeida
Keyword(s):  
Arbitration Procedure ◽  
International Tax ◽  
Tax Arbitration

scholarly journals TAX TREATY ARBITRATION

2018 ◽  
pp. 21-36
Author(s):  
DANIL VINNITSKIY ◽  
ANDREY SAVITSKIY ◽  
EVGENIY PUSTOVALOV
Keyword(s):  
Research Methods ◽  
Legal Regulation ◽  
International Arbitration ◽  
Double Taxation ◽  
Functional Interpretation ◽  
Cross Border ◽  
The Cross ◽  
International Tax ◽  
Tax Arbitration ◽  
Mutual Agreement

Introduction: this article reviews the cross-border tax disputes resolution practice in Russia and evaluates the prospects for the development of new mechanisms for the resolution of tax disputes arising from cross-border relations, including tax arbitration. In recent years, the development of international instruments for eliminating double taxation and resolving tax disputes within OECD and G20 multilateral formats as well as bilateral agreements on avoidance of double taxation have led to the growing interest in this paper’s topic. The purpose of this paper is to determine / identify an optimal mechanism for the cross-border tax disputes resolution in Russia, taking into account the current domestic legal regulation and international commitments in the field of cross-border taxation. Methods: given the nature of this research, we have used the general scientific and individual scientific research methods. We have also used legal research methods such as comparative legal and formal legal methods, logical, systemic, and functional interpretation. The recent academic literature on the particular aspects of this research has been investigated too. Analysis: the practice in the application of international tax agreements in Russia demonstrates that the cross-border tax disputes are mainly resolved within the framework of domestic judicial procedures. Mutual agreement procedures and tax arbitration are not common mechanisms for resolving cross-border tax disputes in Russia. Meanwhile, the international investment disputes affecting particular aspects of taxation are often dealt through international arbitration institutions. Results: as a part of the commitments made under the Multilateral Instrument (MLI), Russian Federation considers arbitration and mutual agreement procedures only as possible alternative ways to settle cross-border tax disputes arising from international tax agreements. Based on the well-known cross-border tax disputes resolution practice, we conclude that none of the states could completely isolate itself from the international arbitration procedures in the current circumstances. This is true even if such state did not include the arbitration clause in its tax agreements and did not make the commitments on tax arbitration under the Multilateral Instrument (MLI).

scholarly journals “An Unacceptable Surrender of Fiscal Sovereignty”: The Neoliberal Turn to International Tax Arbitration

2021 ◽  
pp. 1-16
Author(s):  
Martin Hearson ◽  
Todd N. Tucker
Keyword(s):  
Global Financial Crisis ◽  
The United States ◽  
Wealth Accumulation ◽  
Incremental Change ◽  
Business Power ◽  
Past Half Century ◽  
International Tax ◽  
The Global Financial Crisis ◽  
Tax Arbitration

The growth of inequality over the past half century is closely connected to the rise of neoliberal policies and institutions, the latter of which shield capital from state actions that might limit wealth accumulation. Economic nationalism since the global financial crisis has slowed or even reversed this, yet this same era has seen the emergence of a new form of instrument in the neoliberal mold, in a stronghold of state sovereignty: taxation. Under mandatory binding tax arbitration, states cede sovereignty over the interpretation of international tax agreements to panels of transnational tax adjudicators. Focusing on the pivotal role of the United States, we use historical documents, including from the congressional archive and interviews with key actors to ask why tax arbitration emerged late in the neoliberal era, and at a counterintuitive time. We demonstrate that this outcome is the result of instrumental business power driving a process of incremental change through layering, to overcome states’ preference to retain sovereignty. This experience sheds light on the historically structured ways that business power constrains sovereignty in an era of high inequality.

scholarly journals The Resolution of Tax Disputes and International Tax Arbitration

2020 ◽  
Vol 5 (1) ◽  
Author(s):  
Benja Anglès Juanpere
Keyword(s):  
Tax Avoidance ◽  
International Level ◽  
Double Taxation ◽  
Multilateral Agreements ◽  
International Tax ◽  
Tax Payments ◽  
International Transactions ◽  
Tax Arbitration ◽  
Bilateral Treaties ◽  
The Eu

Globalisation and the digital economy have revolutionised the world’s markets and international transactions, some of which manage to escape national jurisdictions and bilateral treaties between States. With the lack of multilateral agreements, certain taxpayers, multinationals in particular, have managed to slip through the net of individual countries’ tax regulations and been able to reduce their tax payments. To resolve tax disputes between taxpayers and States, with the chief goals of avoiding double taxation and not being subject to any tax jurisdiction, a number of multilateral measures have been instituted, including—amongst other mechanisms—binding international tax arbitration proceedings. The OECD and the EU are fostering the implementation of such measures, whose goal is to prevent tax avoidance and achieve a fair spread of tax burdens on an international level.

Arbitration and tax treaty disputes

2019 ◽  
Vol 35 (4) ◽  
pp. 473-504
Author(s):  
Michelle Andrea Markham
Keyword(s):  
Dispute Resolution ◽  
Action Plan ◽  
Final Report ◽  
Profit Shifting ◽  
The Past ◽  
The World ◽  
Arbitration Procedure ◽  
International Tax ◽  
Dispute Resolution Mechanism ◽  
Mutual Agreement

Abstract The Organisation for Economic Cooperation and Development’s Base Erosion and Profit Shifting Action Plan and its implementation around the world over the last few years has brought about widespread and fundamental changes to the international tax framework. A corollary of these changes has been an increase in international tax treaty disputes, as newly-designed rules are challenged by both taxpayers and tax administrations. This article seeks to examine how such controversies have been addressed in the past, and to evaluate whether in this new environment arbitration may provide the key to successful tax treaty dispute resolution, despite concerns regarding national sovereignty. It considers the changes effected to the traditional tax treaty dispute resolution mechanism under the Mutual Agreement Procedure by the Action 14 Final Report on Making Dispute Resolution Mechanisms More Effective. Furthermore, it evaluates the use of arbitration under the Multilateral Instrument, as well as the application of certain reservations and options available in this regard. It explores some of the benefits of instituting an arbitration procedure that will ensure resolution for all international stakeholders. Finally, it considers the potential for Advance Pricing Agreements to proactively resolve tax treaty disputes, and the need for taxpayers to take a strategic and informed view of controversy management in the international tax sphere.

Mandatory binding tax arbitration—is this a pathway to a more efficient Mutual Agreement Procedure?

2015 ◽  
Vol 35 (2) ◽  
pp. 149-170 ◽  
Author(s):  
Michelle Markham
Keyword(s):  
Dispute Resolution ◽  
Economic Cooperation ◽  
Effective Mechanism ◽  
Time Limits ◽  
Recent Developments ◽  
International Tax ◽  
Tax Arbitration ◽  
Best Offer ◽  
Mutual Agreement

Abstract The Organisation for Economic Cooperation and Development (OECD) has recently been exploring ways to improve dispute resolution mechanisms in the realm of international tax, notably through the use of binding mandatory arbitration as part of the Mutual Agreement Procedure (MAP) Article in Double Tax Agreements. This article seeks to examine whether binding mandatory arbitration would provide an effective mechanism for resolving international tax disputes. It investigates policy concerns with mandatory arbitration, especially sovereignty issues, access to mandatory arbitration and its scope, as well as the interface between MAP arbitration and domestic remedies. The possibility of deferring time limits on arbitration, the appropriateness of the ‘last-best-offer’ or baseball arbitration approach versus the ‘independent opinion’ approach and contentious issues surrounding the appointment of arbitrators will be considered, along with recent developments in arbitration processes. ‘Arbitration of taxation disputes is attractive and effective, presenting significant advantages to businesses and governments… Arbitration always reaches a conclusion, provides for impartial determinations with proper taxpayer participation and applies law rather than expediency. The process is orderly, predictable and transparent.’ 1

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