Thesis Chapters by Richard Xenophon Resch
Tax Treaty Interpretation: The Meaning and Application of Article 3(2), 2020
This study takes a fresh, thorough look at the interpretation and application of Article 3(2) and... more This study takes a fresh, thorough look at the interpretation and application of Article 3(2) and submits a new approach that transcends the current controversies and gridlock between the German and English positions into a holistic synthesis that is firmly based on the public international law principles of treaty interpretation enshrined in the Vienna Convention on the Law of Treaties.
Article 3(2) is a rule of interpretation contained in all important model conventions and most effective tax treaties. Despite its importance, the OECD Commentary on it comprises only five paragraphs that do not explain in detail how the provision is to be interpreted and applied. In consequence, the international debate has been intense and led to an update of the Commentary on Article 23 concerning how to treat qualification conflicts. Unfortunately, this has not put the controversies to rest, some of which are not resolved to this day, with plenty of adverse consequences in practice.
It is no exaggeration to say that the ongoing confusion and discord about the interpretation and application of Article 3(2) is one of the central issues plaguing the international tax system, because it is one of the main reasons why unintended double taxation and double non-taxation has persisted over the decades. The international debate continues to be divided into diametrically opposed positions, and the approach implemented by the OECD Commentary is outright rejected even by the courts of some OECD countries. Particularly the views of academics and courts in German-speaking countries (and to some extent in countries with related languages such as Swedish and Dutch) are different from those of the English-speaking world, with neither side accepting any merit in the other side's view.
Hence, the purpose of this study is to clarify the meaning and application of Article 3(2). It maps the entire historical debate on the provision, illuminates flawed assumptions and misunderstandings that have happened in its course, and outlines how these continue to fuel the current controversies. In addition, it provides a comprehensive analysis of German case law concerning the interpretation of tax treaties and examines the extent to which it has been influenced by erroneous views developed in doctrine. Finally, it clarifies the relationship between the article and the Vienna Convention rules on treaty interpretation, the meaning of 'context', and how the condition 'unless the context otherwise requires' is to be applied.
The latter is where the front line currently runs between the German and English views. In my opinion, this is the wrong battle and merely a result of the historical development of the debate, which has progressed without having succeeded in putting the ultimate issue at its core to rest. The result of this is an international barrage of conflicting arguments from all sides without common starting and vanishing point -- a maelstrom of complex controversies in which the unsuspecting novice must drown. This book is meant for all who find themselves at a loss in the midst of the ongoing debates and, worse, take either side without thorough contemplation.
The Interpretation of Plurilingual Tax Treaties: Theory, Practice, Policy, Dec 14, 2018
Based on an analysis of 3,844 tax treaties, the Vienna Convention on the Law of Treaties and its ... more Based on an analysis of 3,844 tax treaties, the Vienna Convention on the Law of Treaties and its Commentaries (VCLT), and case law of various domestic and international courts.
The current orthodoxy maintains that courts are not required to compare all language texts of a plurilingual treaty but may rely on a single one for cases of routine interpretation. This view is erroneous, in violation of the VCLT, and the source of treaty misapplication; taxpayers are ill-advised to pay attention only to the text in their own language.
In daily practice, the issue is of great relevance: almost three-quarters of the well over 3,000 concluded tax treaties are plurilingual. The BEPS MLI escalates complexity because it modifies a large number of treaties having texts in various languages. This study aims to (1) increase awareness about the pitfalls of the current orthodoxy and, in consequence, help diminish misapplication of plurilingual tax treaties through its abandonment, (2) show that sole reliance on prevailing texts is available as a pragmatic alternative in line with the VCLT, and (3) provide policy recommendations how residual cases may be eliminated.
To support these goals, this study seeks to provide conclusive arguments and useful data to policy makers, treaty negotiators, judges, practitioners, and other scholars. Its analysis of all tax treaty final clauses is intended to help both taxpayers and courts interpreting tax treaties in practice. The general arguments presented in this book are however not limited to tax treaties, since similar issues play a role in the interpretation of other treaties, for example, in the field of foreign investment regulation.
https://tredition.de/autoren/richard-xenophon-resch-20127/the-interpretation-of-plurilingual-tax-treaties-hardcover-90023/
Papers by Richard Xenophon Resch
Intertax, 2020
This article argues the case for a holistic approach to tax treaty interpretation in respect of m... more This article argues the case for a holistic approach to tax treaty interpretation in respect of multiple authentic language texts, which is supported by Polish case law. In daily practice, courts rarely consider other language text(s). Established international doctrine sanctions this practice by maintaining that a comparison of text(s) would not be necessary for cases of ‘routine interpretation’. This state of affairs impairs international consistency of tax treaty interpretation and necessarily produces cases of treaty misapplication. Hence, it is all the more important to pay attention to case law in which a court has looked at other authentic text(s) – particularly when it has commented on the methodology of plurilingual treaty interpretation in a fundamental manner and not only used the other text(s) to resolve an ambiguity or confirm an interpretation based on the text in its own language. This article will outline and discuss the position developed by the Polish Supreme Admin...
The British Tax Review, 2014
The prevailing view among scholars is that, based on paragraph 1 of Article 33 in combination wit... more The prevailing view among scholars is that, based on paragraph 1 of Article 33 in combination with the presumption contained in paragraph 3 of Article 33 of the Vienna Convention, courts may in good faith rely on a single authenticated text for the purposes of routine interpretation, provided no difficulty arises in the form of an ambiguity or obscurity in the used text, there is no discrepancy between the authenticated texts and the interpretation of the text used does not lead to a result that is manifestly absurd or unreasonable. This article argues to the contrary, that is, that the interpretation of plurilingual treaties essentially requires a comparison of texts to give effect to the expressed intention of the contracting parties in good faith. The status quo sanctioned by the mainstream opinion is especially precarious in the case of tax treaties, fostering a wrongful practice that promotes divergence rather than uniformity of interpretation and may lead to fragmented jurisprudence. Because of the very nature of tax treaties, the presumption contained in paragraph 3 of Article 33 of the Vienna Convention should be considered rebutted by default for such treaties, and courts may not rely in good faith on one authenticated text alone.This material was first published by Thomson Reuters (Professional) UK Limited and Contributors, Sweet & Maxwell (Law Publishers), in Richard Xenophon Resch, "Not in Good Faith — A Critique of the Vienna Convention Rule of Interpretation Concerning its Application to Plurilingual (Tax) Treaties", British Tax Review Issue 3, 2014, and is reproduced by agreement with the Publishers.
Intertax, 2019
This article is a reply to Martin Wichmann’s reply from a German perspective to John F. Avery Jon... more This article is a reply to Martin Wichmann’s reply from a German perspective to John F. Avery Jones’s article ‘Why Can’t the English … ?’, both published in the Bulletin for International Taxation of the International Bureau of Fiscal Documentation (IBFD), 2019 (Volume 73), No. 6/7. It argues that Wichmann’s concerns against Avery Jones’s suggestion for English-speaking countries to follow the lead of non-English speaking countries in concluding tax treaties with an English prevailing text or only in English are unfounded, and that also the few remaining non- English speaking countries with a tendency not to conclude treaties with English prevailing texts should embrace the emerging global reality of English as lingua franca for tax treaties. The article is based on an analysis of 3,358 tax treaties currently in force or yet to come into force.
ERN: Taxation, 2019
This article discusses how language idiosyncrasies affect the interpretation and application of t... more This article discusses how language idiosyncrasies affect the interpretation and application of tax treaties in practice, causing interpretative schisms in the international arena. To illustrate, the interpretation of the permanent home tie-breaker in German tax treaties based on Article 4 of the OECD Model by the German Federal Fiscal Court, German commentators, and the German tax administration is analysed in detail. The example shows that reliance on the harmonizing powers of the OECD Model and Commentary alone is no substitute to a comparison with the other authentic language texts or additional recourse to the prevailing one when such exists.
European taxation, 2007
Germany is in the process of introducing sweeping measures to counter tax avoidance. A new unilat... more Germany is in the process of introducing sweeping measures to counter tax avoidance. A new unilateral switch-over and subject-to-tax provision has been introduced and the anti-treaty-shopping rule has been tightened. Further measures to combat transfers of profits outside Germany and revisions to the general anti-abuse rule are under way. This article addresses the unilateral switch-over and subject-to-tax provision and its compatibility with treaty law.
Law & Society: Public Law - Tax eJournal, 2020
This study takes a fresh, thorough look at the interpretation and application of Article 3(2) and... more This study takes a fresh, thorough look at the interpretation and application of Article 3(2) and submits a new approach that transcends the current controversies and gridlock between the German and English positions into a holistic synthesis that is firmly based on the public international law principles of treaty interpretation enshrined in the Vienna Convention on the Law of Treaties.<br><br>Article 3(2) is a rule of interpretation contained in all important model conventions and most effective tax treaties. Despite its importance, the OECD Commentary on it comprises only five paragraphs that do not explain in detail how the provision is to be interpreted and applied. In consequence, the international debate has been intense and led to an update of the Commentary on Article 23 concerning how to treat qualification conflicts. Unfortunately, this has not put the controversies to rest, some of which are not resolved to this day, with plenty of adverse consequences in pra...
Intertax, 2020
This Article counters the view that the OECD approach to qualification conflicts does not resolve... more This Article counters the view that the OECD approach to qualification conflicts does not resolve all cases. The letter view, which was initially submitted by Klaus Vogel and has not been refuted until today, is based on the assumption of a fundamental difference between distributive rules reading ‘shall be taxable only’ and those reading ‘may be taxed’. When the interpretative principles enshrined in the Vienna Convention on the Law of Treaties (VCLT) are applied to that therminology it transpires that the difference is not fundamental but merely a matter of degree. This is confirmed by the French text of the Model. Thus, the principles enshrined in Article 23(1) apply to all distributive rules, which is confirmed by the OECD Commentary on Article 23. In consequence, the OECD approach covers all of the qualification conflicts that are attributable to States applying different distributive rules because of differences in their domestic laws, without exception. OECD Model, tax treati...
European taxation, 2008
The German Tax Reform Act 2008 features numerous corporate and personal income tax changes. This ... more The German Tax Reform Act 2008 features numerous corporate and personal income tax changes. This first of a two-part article focuses on the general systemic changes introduced, the corporate income tax rate reduction, the municipal business tax calculation, the retention privilege for partnerships and the new dual-income tax system.
The current orthodoxy maintains courts are not required to compare all language texts of a pluril... more The current orthodoxy maintains courts are not required to compare all language texts of a plurilingual tax treaty but may rely on a single one for cases of 'routine interpretation'. This view is fundamentally flawed, in violation of the Vienna Convention on the Law of Treaties, and the source of treaty misapplication. This study aims to: (1) help diminish treaty misapplication through abandonment of the current orthodoxy; (2) show that sole reliance on prevailing texts is available as a pragmatic alternative in line with the Vienna Convention that reduces global resource costs of tax treaty interpretation and increases its overall consistency by eliminating unintended deviations caused by language idiosyncrasies; (3) provide policy recommendations how residual cases may be eliminated. To support this goals, this study seeks to provide conclusive arguments and useful data to policy makers, treaty negotiators, judges, practitioners, and other scholars. Its analysis of the fin...
SSRN Electronic Journal, 2018
Based on an analysis of 3,844 tax treaties, the Vienna Convention on the Law of Treaties and its ... more Based on an analysis of 3,844 tax treaties, the Vienna Convention on the Law of Treaties and its Commentaries (VCLT), and case law of various domestic and international courts.<br><br>The current orthodoxy maintains that courts are not required to compare all language texts of a plurilingual treaty but may rely on a single one for cases of routine interpretation. This view is erroneous, in violation of the VCLT, and the source of treaty misapplication; taxpayers are ill-advised to pay attention only to the text in their own language.<br><br>In daily practice, the issue is of great relevance: almost three-quarters of the well over 3,000 concluded tax treaties are plurilingual. The BEPS MLI escalates complexity because it modifies a large number of treaties having texts in various languages. This study aims to (1) increase awareness about the pitfalls of the current orthodoxy and, in consequence, help diminish misapplication of plurilingual tax treaties through its abandonment, (2) show that sole reliance on prevailing texts is available as a pragmatic alternative in line with the VCLT, and (3) provide policy recommendations how residual cases may be eliminated.<br><br>To support these goals, this study seeks to provide conclusive arguments and useful data to policy makers, treaty negotiators, judges, practitioners, and other scholars. Its analysis of all tax treaty final clauses is intended to help both taxpayers and courts interpreting tax treaties in practice. The general arguments presented in this book are however not limited to tax treaties, since similar issues play a role in the interpretation of other treaties, for example, in the field of foreign investment regulation.<br><br>Note: Excerpt of my Thesis, consisting in TOC, Introduction, and Chapter 3 (Routine Interpretation: A Refutation), the latter being an updated and more extensive version of my previous paper 'Not in Good Faith — A Critique of the Vienna Convention Rule of Interpretation Concerning its Application to Plurilingual (Tax) Treaties'.
British Tax Review, Jul 27, 2014
The prevailing view among scholars is that, based on paragraph 1 of Article 33 in combination wit... more The prevailing view among scholars is that, based on paragraph 1 of Article 33 in combination with the presumption contained in paragraph 3 of Article 33 of the Vienna Convention, courts may in good faith rely on a single authenticated text for the purposes of routine interpretation, provided no difficulty arises in the form of an ambiguity or obscurity in the used text, there is no discrepancy between the authenticated texts and the interpretation of the text used does not lead to a result that is manifestly absurd or unreasonable. This article argues to the contrary, that is, that the interpretation of plurilingual treaties essentially requires a comparison of texts to give effect to the expressed intention of the contracting parties in good faith. The status quo sanctioned by the mainstream opinion is especially precarious in the case of tax treaties, fostering a wrongful practice that promotes divergence rather than uniformity of interpretation and may lead to fragmented jurisprudence. Because of the very nature of tax treaties, the presumption contained in paragraph 3 of Article 33 of the Vienna Convention should be considered rebutted by default for such treaties, and courts may not rely in good faith on one authenticated text alone.This material was first published by Thomson Reuters (Professional) UK Limited and Contributors, Sweet & Maxwell (Law Publishers), in Richard Xenophon Resch, "Not in Good Faith — A Critique of the Vienna Convention Rule of Interpretation Concerning its Application to Plurilingual (Tax) Treaties", British Tax Review Issue 3, 2014, and is reproduced by agreement with the Publishers.
Public International Law: Sources eJournal, 2019
This article discusses the OECD BEPS Multilateral Instrument (MLI) in respect of its policy to im... more This article discusses the OECD BEPS Multilateral Instrument (MLI) in respect of its policy to implement equally authoritative English and French texts. It evaluates this choice against the background of the policies implemented in the final clauses of all existing bilateral tax treaties and proposes possible solutions to resolve the problems resulting from the MLI final clause. The global tax treaty network is modelled based on a sample of 3,358 tax treaties currently concluded.
British Tax Review, 2021
To this day, the correct interpretation of article 3(2) of the OECD Model Convention remains high... more To this day, the correct interpretation of article 3(2) of the OECD Model Convention remains highly contested. In November 2020, John Avery Jones and Michael Lang, who represent the diametrically opposed positions in the global debate, once again discussed their views without finding agreement. This article replies to Lang's submissions. The author's less pronounced disagreements with Avery Jones are discussed only where relevant. As part of the discussion, the author submits a new approach that overcomes the current controversies and clarifies the meaning of article 3(2) based on a solid foundation of public international law principles. * Independent scholar. The author wishes to thank John Avery Jones for his comments and Vanessa Arruda Ferreira for her help with French wordings. All translations from German are the author's own.
Intertax, 2020
This article argues the case for a holistic approach to tax treaty interpretation in respect of m... more This article argues the case for a holistic approach to tax treaty interpretation in respect of multiple authentic language texts, which is supported by Polish case law. In daily practice, courts rarely consider other language text(s). Established international doctrine sanctions this practice by maintaining that a comparison of text(s) would not be necessary for cases of 'routine interpretation'. This state of affairs impairs international consistency of tax treaty interpretation and necessarily produces cases of treaty misapplication. Hence, it is all the more important to pay attention to case law in which a court has looked at other authentic text(s)-particularly when it has commented on the methodology of plurilingual treaty interpretation in a fundamental manner and not only used the other text(s) to resolve an ambiguity or confirm an interpretation based on the text in its own language. This article will outline and discuss the position developed by the Polish Supreme Administrative Court (NSA) which is congruent with the views developed by the present author elsewhere based on fundamental principles of public international law and considerations of systematic consistency.
This article is a reply to Martin Wichmann’s reply from a German Perspective to John F. Avery Jon... more This article is a reply to Martin Wichmann’s reply from a German Perspective to John F. Avery Jones’s article ‘Why Can’t the English ... ?’,
both published in the Bulletin for International Taxation of the International Bureau of Fiscal Documentation (IBFD), 2019 (Volume 73), No. 6/7. It argues that Wichmann’s concerns against Avery Jones’s suggestion for English-speaking countries to follow the lead of non-English speaking countries in concluding tax treaties with an English prevailing text or only in English are unfounded, and that also the few remaining non-English speaking countries with a tendency not to conclude treaties with English prevailing texts should embrace the emerging global reality of English as lingua franca for tax treaties. The article is based on an analysis of 3,358 tax treaties currently in force or yet to come into force.
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Thesis Chapters by Richard Xenophon Resch
Article 3(2) is a rule of interpretation contained in all important model conventions and most effective tax treaties. Despite its importance, the OECD Commentary on it comprises only five paragraphs that do not explain in detail how the provision is to be interpreted and applied. In consequence, the international debate has been intense and led to an update of the Commentary on Article 23 concerning how to treat qualification conflicts. Unfortunately, this has not put the controversies to rest, some of which are not resolved to this day, with plenty of adverse consequences in practice.
It is no exaggeration to say that the ongoing confusion and discord about the interpretation and application of Article 3(2) is one of the central issues plaguing the international tax system, because it is one of the main reasons why unintended double taxation and double non-taxation has persisted over the decades. The international debate continues to be divided into diametrically opposed positions, and the approach implemented by the OECD Commentary is outright rejected even by the courts of some OECD countries. Particularly the views of academics and courts in German-speaking countries (and to some extent in countries with related languages such as Swedish and Dutch) are different from those of the English-speaking world, with neither side accepting any merit in the other side's view.
Hence, the purpose of this study is to clarify the meaning and application of Article 3(2). It maps the entire historical debate on the provision, illuminates flawed assumptions and misunderstandings that have happened in its course, and outlines how these continue to fuel the current controversies. In addition, it provides a comprehensive analysis of German case law concerning the interpretation of tax treaties and examines the extent to which it has been influenced by erroneous views developed in doctrine. Finally, it clarifies the relationship between the article and the Vienna Convention rules on treaty interpretation, the meaning of 'context', and how the condition 'unless the context otherwise requires' is to be applied.
The latter is where the front line currently runs between the German and English views. In my opinion, this is the wrong battle and merely a result of the historical development of the debate, which has progressed without having succeeded in putting the ultimate issue at its core to rest. The result of this is an international barrage of conflicting arguments from all sides without common starting and vanishing point -- a maelstrom of complex controversies in which the unsuspecting novice must drown. This book is meant for all who find themselves at a loss in the midst of the ongoing debates and, worse, take either side without thorough contemplation.
The current orthodoxy maintains that courts are not required to compare all language texts of a plurilingual treaty but may rely on a single one for cases of routine interpretation. This view is erroneous, in violation of the VCLT, and the source of treaty misapplication; taxpayers are ill-advised to pay attention only to the text in their own language.
In daily practice, the issue is of great relevance: almost three-quarters of the well over 3,000 concluded tax treaties are plurilingual. The BEPS MLI escalates complexity because it modifies a large number of treaties having texts in various languages. This study aims to (1) increase awareness about the pitfalls of the current orthodoxy and, in consequence, help diminish misapplication of plurilingual tax treaties through its abandonment, (2) show that sole reliance on prevailing texts is available as a pragmatic alternative in line with the VCLT, and (3) provide policy recommendations how residual cases may be eliminated.
To support these goals, this study seeks to provide conclusive arguments and useful data to policy makers, treaty negotiators, judges, practitioners, and other scholars. Its analysis of all tax treaty final clauses is intended to help both taxpayers and courts interpreting tax treaties in practice. The general arguments presented in this book are however not limited to tax treaties, since similar issues play a role in the interpretation of other treaties, for example, in the field of foreign investment regulation.
https://tredition.de/autoren/richard-xenophon-resch-20127/the-interpretation-of-plurilingual-tax-treaties-hardcover-90023/
Papers by Richard Xenophon Resch
both published in the Bulletin for International Taxation of the International Bureau of Fiscal Documentation (IBFD), 2019 (Volume 73), No. 6/7. It argues that Wichmann’s concerns against Avery Jones’s suggestion for English-speaking countries to follow the lead of non-English speaking countries in concluding tax treaties with an English prevailing text or only in English are unfounded, and that also the few remaining non-English speaking countries with a tendency not to conclude treaties with English prevailing texts should embrace the emerging global reality of English as lingua franca for tax treaties. The article is based on an analysis of 3,358 tax treaties currently in force or yet to come into force.
Article 3(2) is a rule of interpretation contained in all important model conventions and most effective tax treaties. Despite its importance, the OECD Commentary on it comprises only five paragraphs that do not explain in detail how the provision is to be interpreted and applied. In consequence, the international debate has been intense and led to an update of the Commentary on Article 23 concerning how to treat qualification conflicts. Unfortunately, this has not put the controversies to rest, some of which are not resolved to this day, with plenty of adverse consequences in practice.
It is no exaggeration to say that the ongoing confusion and discord about the interpretation and application of Article 3(2) is one of the central issues plaguing the international tax system, because it is one of the main reasons why unintended double taxation and double non-taxation has persisted over the decades. The international debate continues to be divided into diametrically opposed positions, and the approach implemented by the OECD Commentary is outright rejected even by the courts of some OECD countries. Particularly the views of academics and courts in German-speaking countries (and to some extent in countries with related languages such as Swedish and Dutch) are different from those of the English-speaking world, with neither side accepting any merit in the other side's view.
Hence, the purpose of this study is to clarify the meaning and application of Article 3(2). It maps the entire historical debate on the provision, illuminates flawed assumptions and misunderstandings that have happened in its course, and outlines how these continue to fuel the current controversies. In addition, it provides a comprehensive analysis of German case law concerning the interpretation of tax treaties and examines the extent to which it has been influenced by erroneous views developed in doctrine. Finally, it clarifies the relationship between the article and the Vienna Convention rules on treaty interpretation, the meaning of 'context', and how the condition 'unless the context otherwise requires' is to be applied.
The latter is where the front line currently runs between the German and English views. In my opinion, this is the wrong battle and merely a result of the historical development of the debate, which has progressed without having succeeded in putting the ultimate issue at its core to rest. The result of this is an international barrage of conflicting arguments from all sides without common starting and vanishing point -- a maelstrom of complex controversies in which the unsuspecting novice must drown. This book is meant for all who find themselves at a loss in the midst of the ongoing debates and, worse, take either side without thorough contemplation.
The current orthodoxy maintains that courts are not required to compare all language texts of a plurilingual treaty but may rely on a single one for cases of routine interpretation. This view is erroneous, in violation of the VCLT, and the source of treaty misapplication; taxpayers are ill-advised to pay attention only to the text in their own language.
In daily practice, the issue is of great relevance: almost three-quarters of the well over 3,000 concluded tax treaties are plurilingual. The BEPS MLI escalates complexity because it modifies a large number of treaties having texts in various languages. This study aims to (1) increase awareness about the pitfalls of the current orthodoxy and, in consequence, help diminish misapplication of plurilingual tax treaties through its abandonment, (2) show that sole reliance on prevailing texts is available as a pragmatic alternative in line with the VCLT, and (3) provide policy recommendations how residual cases may be eliminated.
To support these goals, this study seeks to provide conclusive arguments and useful data to policy makers, treaty negotiators, judges, practitioners, and other scholars. Its analysis of all tax treaty final clauses is intended to help both taxpayers and courts interpreting tax treaties in practice. The general arguments presented in this book are however not limited to tax treaties, since similar issues play a role in the interpretation of other treaties, for example, in the field of foreign investment regulation.
https://tredition.de/autoren/richard-xenophon-resch-20127/the-interpretation-of-plurilingual-tax-treaties-hardcover-90023/
both published in the Bulletin for International Taxation of the International Bureau of Fiscal Documentation (IBFD), 2019 (Volume 73), No. 6/7. It argues that Wichmann’s concerns against Avery Jones’s suggestion for English-speaking countries to follow the lead of non-English speaking countries in concluding tax treaties with an English prevailing text or only in English are unfounded, and that also the few remaining non-English speaking countries with a tendency not to conclude treaties with English prevailing texts should embrace the emerging global reality of English as lingua franca for tax treaties. The article is based on an analysis of 3,358 tax treaties currently in force or yet to come into force.