Kysar: The Stakes of the Global Tax Deal for International Economic Governance

Rebecca M. Kysar (Fordham Univ. - Law) has posted The Stakes of the Global Tax Deal for International Economic Governance. Here's the abstract:

These remarks, prepared for the Richard Crawford Pugh Lecture on Tax Law & Policy at the University of San Diego Law school, tell the story of how the global tax deal, which was agreed upon by over 140 countries in 2021, came to be. Specifically, they explore a new version of international economic governance--one aimed at a more equitable distribution of the gains from globalization from both international and intranational perspectives--that ultimately propelled its success. Importantly, however, the story of the global tax deal is a contingent one. The dissatisfaction with globalization that led towards tax multilateralism can just as easily lead to nations to turn inwards, away from all forms of international economic governance, as we are now seeing. And given today’s fraught political moment, these remarks also explore the alternative, and darker, geopolitical vision with which opponents of the global tax deal are aligning themselves, perhaps unknowingly.

Haase & Kofler: The Oxford Handbook of International Tax Law

Florian Haase (HSBA Hamburg School of Business Administration) & Georg Kofler (Wirtschaftsuniversitat Wien - Law) have published The Oxford Handbook of International Tax Law (Oxford Univ. Press 2023). Here's the abstract:

International Tax Law is at a turning point. Increased tax transparency, the tackling of Base Erosion and Profit Shifting (BEPS), the reconstruction of the network of bilateral tax treaties, the renewed discussion about a fair and efficient allocation of taxing rights between States in a global, digitalized economy, and the bold push for minimum corporate taxation are some expressions of this shift. This new era also demonstrates the increased influence of international standard setters such as the OECD, the UN, and the EU. Each of these developments alone has the potential of being disruptive to the traditional world of international tax law, but together they have the potential to reshape the international tax system. The Oxford Handbook of International Tax Law provides a comprehensive exploration of these key issues which will shape the future of tax law.

Divided into eight parts, this handbook traces the history of international tax law from its earliest days until the present, including reflections on the developments that have characterized the last one hundred years. The second section places tax law within the broader international context considering how it relates to public and private international law, as well as corporate, trade, and criminal law. Sections three and four consider key legal principles and issues such as regional tax treaty models, OECD dispute resolution, and transfer pricing versus formulary apportionment. Subsequent analysis places these issues within their European and cross-border contexts providing an assessment of the role of the ECJ, state aid, and cross-border VAT. Section seven broadens the scope of this analysis, asking how trends in recent major economies and regions have helped shape the current outlook. The final section considers emerging issues and the future of international tax law.

Baistrocchi: Global Tax Hubs

Eduardo A. Baistrocchi (London School of Economics - Law) has posted Global Tax Hubs (Florida Tax Review, forthcoming). Here's the abstract:

Global tax hubs are the black boxes of the international tax regime (ITR). The driving forces of their strategic interaction with other building blocks of the ITR remain undertheorized. This paper offers the first theory of tax hubs as a two-sided global marketplace. It argues that tax hubs are the matchmakers of the ITR. Indeed, international investors, tax hubs and endpoint jurisdictions play different yet interrelated roles within the same ecosystem, i.e., the two-sided platform. The theory is positive rather than normative. It aims to explain how the creeping marketization of the ITR, as part of international law, has been frequently instrumented worldwide over the last century. The paper provides a stress test to the theory’s explanatory power and its limitations. The conceptual framework of this piece rests on antitrust law and economic concepts.

Lifshits: Tax Competence of the Eurasian Economic Union: A New Reading by the Court

Ilya Lifshits (Russian Foreign Trade Academy – Law) has published Tax Competence of the Eurasian Economic Union: A New Reading by the Court (Nuovi Autoritarismi e Democrazie: Diritto, Istituzioni, Società, Vol. 5, no. 1, 2023). Here's the abstract:

In October 2022, the Court of the Eurasian Economic Union (EAEU) adopted the first Advisory Opinion fully devoted to the interpretation of the tax provisions of the EAEU Treaty. While reiterating its previous findings that the powers to impose taxes fall within the jurisdiction of the Member States, for the first time, the Court has argued in favour of limiting these powers by the law of the EAEU. Such limitations derive from the principles of non-discrimination and free competition of goods and services regardless of the country of production. In such a manner, the Court has made a significant contribution to the establishment of a single common market within the Union and has enriched the understanding of the principles governing the division of competence between the Member States and the bodies of the Union. The only conclusion that could be seen as dubious by the Court was regarding the collection of VAT on the basis of the country of destination and the fact that this is necessary to maintain competition and avoid double taxation and that the reasoning for such a mechanism is also predetermined by the nature of this tax.

Avi-Yonah: The New International Tax Framework: Evolution or Revolution?

Reuven S. Avi-Yonah (Univ. of Michigan - Law) has posted an ASIL Insight on The New International Tax Framework: Evolution or Revolution?

AJIL Unbound Symposium: Mason's "The Transformation of International Tax"

AJIL Unbound has posted a symposium on Ruth Mason’s article "The Transformation of International Tax." The symposium includes an introduction by Alan O. Sykes and contributions by Reuven S. Avi-Yonah, Wei Cui, Lilian V. Faulhaber, and Wolfgang Alschner.

Ogle: ‘Funk Money’: The End of Empires, The Expansion of Tax Havens, and Decolonization as an Economic and Financial Event

Vanessa Ogle (Univ. of California, Berkeley - History) has posted ‘Funk Money’: The End of Empires, The Expansion of Tax Havens, and Decolonization as an Economic and Financial Event (Past & Present, forthcoming). Here's the abstract:

This article explores the question of what happened to European assets in the process of decolonization. It argues that decolonization created a money panic of sorts that led white settlers, businessmen, and officials to seek to liquidate assets they owned and move funds out of the colonial world. Instead of being repatriated to metropolitan countries with high tax rates and exchange controls, money moved to tax havens. Decolonization thus provided an important share of early postwar tax haven business in a period when tax havens and offshore finance expanded during the 1950s and 1960s. In turn, the withdrawal of Euro-American investments from the decolonizing world set the stage for the politics of development and modernization in the coming decades. Ironically, the outflow of funds during decolonization and the subsequent return of some funds in restructured form as investments by multinational and other companies soon caused difficulties in newly independent developing countries. Companies soon found ways to rebook profits to have occurred in a tax haven rather than in the developing world, thus depriving low-income countries from tax revenue. The withdrawal of Euro-American investments from the colonial world during decolonization moreover had implications for the growth of portfolio investment, as funds removed from colonies were often invested through a tax haven onwards in US securities. All in all, decolonization was an economic and financial event that is only beginning to emerge in full detail.

Avi-Yonah: Does Customary International Tax Law Exist?

Reuven S. Avi-Yonah (Univ. of Michigan - Law) has posted Does Customary International Tax Law Exist? Here's the abstract:

Customary international law is law that “results from a general and consistent practice of states followed by them from a sense of legal obligation.” “International agreements create law for states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.” Does customary international law (CIL) exist in tax? There are over 3,000 bilateral tax treaties, and they are about 80% identical to each other, but do they create CIL that binds in the absence of a binding treaty, like for example the Vienna Convention on the Law of Treaties binds the US, which has not ratified it? This chapter will argue that the answer is yes, using four examples: jurisdiction to tax, the permanent establishment (PE) threshold, the arm’s length standard, and non-discrimination.

Dykes: Researching International Tax Law

Christopher C. Dykes (Univ. of Houston - Law) has posted Researching International Tax Law (GlobaLex, April 2019)

Workshop: Customary International Law and its Interpretation in International Tax & Investment Law

On February 20, 2019, a workshop on "Customary International Law and its Interpretation in International Tax & Investment Law" will be held at the University of Groningen. The program is here. Here's the idea:

In international law, interpretation is ubiquitous and is the process through which the interpreter attempts to determine the true meaning of the rule that is being interpreted. Most cases brought before international courts and tribunals deal one way or another with questions of interpretation. This process has been codified in Articles 31-33 of the Vienna Convention on the Law of Treaties (VCLT).

Customary international law (CIL), in turn, is one of the formal sources of international law creating binding rules of international law. Some of the most crucial rules of international law started and continue to exist as CIL. The issue with CIL, however, is that it is an unwritten source of international law. Its existence is determined inductively through examination of two elements, state practice and opinio juris (acceptance as law).

Whereas in the application of treaties the process of interpretation is one that always yields a solution, with respect to CIL these rules of interpretation have not been examined, despite the fact that it has been and remains the object of multiple studies and of application by almost all courts and tribunals. Evidently in the study of CIL there is a lacuna in understanding how CIL once it has been formed, continues to exist and is interpreted, and what is the nature and content of those interpretative rules.

In light of these developments and evolving views, this workshop aims to initiate a debate on the challenges and opportunities presented by CIL and its interpretation in two main fields, ie international tax law, and international investment law.

Kallergis: La compétence fiscale

Andréas Kallergis (Sorbonne Law School) has published La compétence fiscale (Dalloz 2018). Here's the abstract:

Pour identifier des limites internationales de la liberté de l'État en matière fiscale, il convient d'étudier non seulement sa compétence fiscale - envers qui il peut exercer le pouvoir fiscal - mais aussi son pouvoir fiscal - ce qu'il peut faire dans l'exercice de ce pouvoir. Ces éléments sont éclaircis à travers l'analyse de la pratique étatique et de la jurisprudence internationale. La compétence fiscale de l'État ne repose pas sur une habilitation par l'ordre juridique international, mais doit être appréhendée sous le prisme des deux faces de l'État : personne publique et sujet de droit international. D'une part, les États disposent d'un pouvoir fiscal originaire de leur constitution comme personnes publiques souveraines. D'une autre part, en tant que sujets de droit international, ils peuvent se reconnaître des droits et des obligations subjectifs, et donc aménager l'exercice de leurs pouvoirs fiscaux par la détermination des sphères de leurs compétences par la conclusion d'engagements interétatiques. En dehors de cette hypothèse, les critères de rattachement fiscal sont des représentations d'une relation entre l'État et le sujet ou l'objet de l'impôt selon l'appréciation de l'État normateur, et non pas des règles certaines de compétence internationale. La liberté de l'État de déterminer le contenu de son pouvoir fiscal est encadrée de manière rudimentaire par le droit international. Cet encadrement implique essentiellement l'inopposabilité des normes fiscales d'effet extraterritorial et l'interdiction de réalisation d'opérations matérielles en territoire étranger. Pour autant, parce qu'il est souverain, l'État peut consentir à des limitations de son pouvoir fiscal dans le cadre de la coopération ou l'intégration internationale, sans que le titre de son pouvoir ne soit contesté.

Call for Papers: The EU and its Partners in Global Governance: Trade, Investment, Tax and Sustainable Development

The Chinese University of Hong Kong and the Leuven Centre for Global Governance Studies at KU Leuven have issued a call for papers for a conference on "The EU and its Partners in Global Governance: Trade, Investment, Tax and Sustainable Development," to take June 14-15, 2018, in Hong Kong. The call is here.

Avi-Yonah & Vallespinos: Special Tax Zones and the WTO

Reuven S. Avi-Yonah (Univ. of Michigan - Law) & Martin Vallespinos (Univ. of Michigan - Law) have posted Special Tax Zones and the WTO. Here's the abstract:

Since the SCM agreement was enacted in 1995, the global leadership in the field of STZs has shifted from the OECD to the WTO.

The WTO general agreement includes a broad set of policy goals that goes beyond trade relationships, but its legal framework has been systematically narrowed to the task of assuring market access, non-discrimination, and fairness in trade. Other relevant issues that has impacts on trade, such as for example harmful tax competition or tax base erosion, has not been sufficiently weighted and has been treated as secondary items.

As of today, having passed more than 20 years since the enactment of the first WTO agreements, the WTO overall treatment of STZs appears to be inconsistent with the general policy goals of the organization. While service STZs generally remain free from challenge because there are no formal subsidy rules concerning services, manufacturing STZs with substantial activities have been significantly curtailed by the SCM Agreement. The disparity in the treatment of “goods” and “services” has produced a negative impact on developing countries, as they tend to rely more on manufacturing STZs to achieve economic growth, while benefitting developed countries, which to rely more on offshore banking, technology, and financial services STZs in order and attract investment.

The fairness and distributional concerns raised by this disparity in treatment has also been placed in a secondary position, on the grounds that the objectives of the WTO are limited to market access, freedom, and non-discrimination in trade. This perspective, however, is not consistent with the rationale and general policy goals of the organization, as provided by the main WTO agreement.

Call for Papers: Human Rights and Tax in an Unequal World

The Center for Human Rights and Global Justice at New York University School of Law has issued a call for papers for a conference on "Human Rights and Tax in an Unequal World," to be held September 22-23, 2016. Here's the call:

Call for Papers

Human Rights and Tax in an Unequal World

Abstract/Draft Paper Deadline: July 1, 2016

Event Date: September 22-23, 2016

Location: NYU School of Law

The Center for Human Rights and Global Justice (CHRGJ) invites submissions of scholarly papers for a conference on human rights and tax, to be held at NYU School of Law on September 22-23, 2016. The conference aims to develop a deeper understanding of the ways in which tax policy is a centrally important form of human rights policy, and to consider how the international human rights framework can best be used to promote greater equality and justice through the global tax regime. For years, resource constraints have been cited as the principal limitation on the ability of States to fulfill their human rights obligations, particularly when it comes to economic, social and cultural rights. Yet with few exceptions, human rights scholars and practitioners have shied away from core economic and financial debates, leaving the policies that shape resource availability and allocation largely in the hands of economists, tax and investment lawyers, and “development” experts. Those technocrats, in turn, have rarely paid heed to the expanding corpus of human rights law and its implications for State and non-State actors. There has been very little dialogue between tax and human rights experts, and even less scholarship on the intersection of these fields. CHRGJ’s conference aims to help fill that gap.

The one-and-a-half day event will bring together leading practitioners and scholars from the fields of domestic and international taxation, human rights, corporate accountability, and development. The conference will be structured around a series of seven panels, addressing issues such as: the role of human rights law in regulating tax practices; the impacts of tax on human rights; the North-South dimensions of tax abuse and of solutions to it; private sector responsibility for abusive tax practices; State duties to enforce tax transparency; the architecture of international tax reform; and inequality through the lenses of tax and human rights. Conference materials will be widely disseminated and an edited volume of essays, based on papers presented, will be published after the conference. Because one of the organizers is the United Nations’ Human Rights Council’s Special Rapporteur on extreme poverty and human rights, the outcomes of the conference will also feed into ongoing discussion of these issues in the UN context.

Papers may be on any topic related to conference theme, including the seven areas of focus listed above-listed, and must be unpublished at the time of their submission. Inter-disciplinary and co-authored pieces are welcome. While multiple submissions will be considered, no author will be selected to present more than one paper. Interested authors should submit an abstract of no more than 500 words in length, summarizing the scholarly paper to be presented at the conference, to anam.salem@nyu.edu by 5pm EST, Friday, July 1, 2016. If the full paper is available, interested authors may submit the full paper for consideration by the same deadline. Notifications of acceptance will be sent in late July. Authors of accepted papers will be required to submit a draft of the paper by Thursday, September 1, 2016 —3 weeks in advance of the conference—and must agree to allow it to be shared with other conference panelists and discussants in advance of the event.

Questions should be sent to the conference conveners: Nikki Reisch, nikki.reisch@nyu.edu and Philip Alston, philip.alston@nyu.edu.

Grinberg & Pauwelyn: The Emergence of a New International Tax Regime: The OECD’s Package on Base Erosion and Profit Shifting (BEPS)

Itai Grinberg (Georgetown Univ. - Law) & Joost Pauwelyn (Graduate Institute of International and Development Studies) have posted an ASIL Insight on The Emergence of a New International Tax Regime: The OECD’s Package on Base Erosion and Profit Shifting (BEPS).

Conference: The Settlement of Tax Disputes under International Law

On November 12-13, 2015, the Research Unit in Law, University of Luxembourg, will hold a conference on "The Settlement of Tax Disputes under International Law." The program is here. Here's the idea:

The conference will examine the settlement of tax disputes under international law, with the aim of analysing taxation issues through the lens of international law and its dispute settlement procedures. The interaction between taxation and investor rights as protected under international investment agreements will be explored. Taxation measures are often sought to be excluded from the scope of such agreements. But taxation can affect investor rights, when its effect is tantamount to expropriation, or when it imposes disproportionate or discriminatory burden on foreign investors. The relationship between tax law and international human rights law will also be considered. States’ imposition of taxes must be exercised in accordance with human rights principles. These limits will be examined by reference, in particular, to the jurisprudence the European Court of Justice and the European Court of Human Rights. The conference will also discuss the dispute settlement mechanisms in double taxation agreements and their relationships with other forms on international dispute settlement. The conference will bring together academics and practitioners from tax and international law backgrounds. The final session will be devoted to the work of junior scholars.

Call for Papers: Settlement of Tax Disputes under International Law (Junior Scholars)

The Research Unit in Law of the University of Luxembourg has issued a call for papers for junior scholars for a roundtable at a conference on the settlement of tax disputes under international law. Here's the call:

On 12-13 November 2015, the Research Unit in Law of the University of Luxembourg, with the support of the Fonds National de la Recherche Luxembourg, will be holding a conference on the settlement of tax disputes under international law, with the aim of analysing taxation issues through the lens of international law and its dispute settlement procedures, and bringing together international lawyers and tax lawyers to do so. Confirmed speakers already include Prof. Mads Andenas (University of Oslo), Prof. Ilias Bantekas (Brunel University), Dr N. Jansen Calamita (BIICL), Dr Abba Kolo (CEPMLP Dundee), Dr Sébastien Manciaux (Université de Bourgogne), Dr Luca Pantaleo (TMC Asser Instituut), Prof. Alexander Rust (Vienna University of Economics and Business) and Epaminontas Triantafilou (Quinn Emanuel).

Part of the conference will be a roundtable discussion for junior scholars; giving them an opportunity to present their research on issues covered by the conference and to receive feedback from the conference speakers. Those selected will receive a bursary to fund their travel and accommodation expenses, and may also have the opportunity to contribute to the conference proceedings, which will be published. We are now calling for applications to present a paper at the roundtable, and invite junior scholars (PhD candidates, post-docs and fellows) with research interests in the field to apply by submitting an abstract (not exceeding 800 words) of their proposed paper, together with a copy of their CV, to Prof. Matthew Happold (Matthew.Happold@uni.lu). The deadline for submissions is 5 September 2015.

Avi-Yonah: Hanging Together: A Multilateral Approach to Taxing Multinationals

Reuven S. Avi-Yonah (Univ. of Michigan - Law) has posted Hanging Together: A Multilateral Approach to Taxing Multinationals. Here's the abstract:

The recent revelation that many multinational enterprises (MNEs) pay very little tax to the countries they operate in has led to various proposals to change the ways they are taxed. Most of these proposals, however, do not address the fundamental flaws in the international tax regime that allow companies like Apple or Starbucks to legally avoid taxation. In particular, the Organization for Economic Cooperation and Development (OECD) has been working on a Base Erosion and Profit Shifting (BEPS) project and is supposed to make recommendations to the G20, but it is not clear yet whether this will result in a meaningful advance toward preventing BEPS. This paper will advance a simple proposal that will allow OECD member countries to tax MNEs based in those countries without impeding their competitiveness. The key observation is that in the 21st century unilateral approaches to tax corporations whose operations span the globe are obsolete, and a multilateral approach is both essential and feasible. The paper therefore proposes that each OECD country commit to taxing its multinationals fully on a current basis, since such a multilateral approach eliminates all the usual arguments against current taxation.

Riccardi: Chinese Tax Law and International Treaties

Lorenzo Riccardi has published Chinese Tax Law and International Treaties (Springer 2013). Here's the abstract:

The People’s Republic of China’s tax policies and international obligations are as multifaceted and dynamic as they are complex, developing closely with the nation’s rise to the world’s fastest-growing major economy. Today, after decades of reform and the entry into the World Trade Organization, China has developed regulatory systems that enable it to provide stable administration, including a tax structure. China’s main tax reform can be attributed to the enactment of the Enterprise Income Tax Law, which came into effect on January 1, 2008. Chinese tax regulations include direct taxes, indirect taxes, other taxes, and custom duties and from a collection point of view, China’s tax administration adopts a very devolved system, with revenue collected and shared between different levels of government in accordance with contracts between the different levels of the tax administration system. With respect to international treaties, China has established a network of bilateral tax treaties and regional free trade agreements. This publication describes in detail China’s complex tax system and policies, as well as major bilateral treaties in which China has entered into using country-by-country analysis.

Jogarajan: The Conclusion and Termination of the 'First' Double Taxation Treaty

Sunita Jogarajan (Univ. of Melbourne - Law) has posted The Conclusion and Termination of the 'First' Double Taxation Treaty (British Tax Review, forthcoming). Here's the abstract:

In 1872, Great Britain and Switzerland (Canton of Vaud) concluded an agreement for the prevention of double taxation in respect of death duties. The Agreement holds a significant place in history as it is the first officially recorded agreement between countries which solely and directly addresses the issue of double taxation, albeit in a limited manner. Despite its prominence as the “first” double taxation agreement, little has been written about the Agreement. Given the current proliferation of bilateral treaties regarding double taxation, it is perhaps beneficial to consider why and how the “first” such treaty was concluded. This article traces the history of the Agreement to understand why these two particular parties were motivated to conclude such an agreement and how the final form of the Agreement was reached. The article then turns to the termination of the Agreement to understand the reasons why the Agreement was terminated and the considerations undertaken in that process. This examination of the life cycle of the Agreement presents an interesting snapshot of many of the issues which have arisen and continue to arise in the negotiation and conclusion of double taxation treaties.