Chapter 21: South Africa
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Why this book? The tax aspects of bilateral investment treaties, which, in most cases, provide the investor with the unique opportunity to directly initiate an international dispute settlement process-also known as investor-state dispute settlement-are often overlooked. The increasing number of tax-related investment disputes is a clear indicator of an urgent need to identify and examine the issues emerging in this area in an academic context. The aim of this book is to provide a comprehensive analysis of the relationship between taxation and bilateral investment treaties. Twenty-one national reports from countries across the globe have been compiled in this volume. The reports, prepared for the conference "The Impact of Bilateral Investment Treaties on Taxation", which took place in Rust (Austria) from 2-4 July 2015, help bring to light tax aspects of bilateral investment treaties that have significant unexplored aspects. Tax academics and tax practitioners, along with investment law academics and practitioners, provided their input. A major focus is the attitude taken towards tax matters in the bilateral investment treaties of reporting countries, as is the relationship between double tax treaties and bilateral investment treaties. In addition to the national aspects, the book also outlines global trends and best practices, and in doing so it aims to analyse the consistency of existing policies with the international obligations undertaken in bilateral investment treaties. The general report elaborates extensively on issues connected with tax carve-out provisions in bilateral investment treaties and the arbitration of tax matters This book is of relevance to practitioners and academics working in tax law and international investment law, as well as students doing research and all who have an interest in the most current issues in these fields of law. The title is volume 8 in the WU Institute for Austrian and International Tax Law-Tax Law and Policy Series.
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The Impact of Bilateral Investment
Treaties on Taxation
Why this book?
The tax aspects of bilateral investment treaties, which, in most cases, provide the investor
with the unique opportunity to directly initiate an international dispute settlement process
– also known as investor-state dispute settlement – are often overlooked. The increasing
number of tax-related investment disputes is a clear indicator of an urgent need to identify
and examine the issues emerging in this area in an academic context. The aim of this book
is to provide a comprehensive analysis of the relationship between taxation and bilateral
investment treaties. Twenty-one national reports from countries across the globe have been
compiled in this volume. The reports, prepared for the conference “The Impact of Bilateral
Investment Treaties on Taxation”, which took place in Rust (Austria) from 2-4 July 2015, help
bring to light tax aspects of bilateral investment treaties that have significant unexplored
aspects. Tax academics and tax practitioners, along with investment law academics and
practitioners, provided their input. A major focus is the attitude taken towards tax matters in
the bilateral investment treaties of reporting countries, as is the relationship between double
tax treaties and bilateral investment treaties. In addition to the national aspects, the book also
outlines global trends and best practices, and in doing so it aims to analyse the consistency of
existing policies with the international obligations undertaken in bilateral investment treaties.
The general report elaborates extensively on issues connected with tax carve-out provisions
in bilateral investment treaties and the arbitration of tax matters This book is of relevance to
practitioners and academics working in tax law and international investment law, as well as
students doing research and all who have an interest in the most current issues in these fields
of law.
The title is volume 8 in the WU Institute for Austrian and International Tax Law - Tax Law and
Policy Series.
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The Impact of Bilateral Investment Treaties on Taxation
Michael Lang et al.
December 2017
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Table of Contents
Table
Contents
Preface
Chapter 1:
xxiii
General Report
Pasquale Pistone
1
1.0.
Introduction
1
1.1.
1.1.1.
1.1.2.
General framework
Policy rationale of bilateral investment and tax treaties
A common dilemma: Concluding bilateral treaties
or doing without them?
Policy trends, models and developments in BITs
and tax treaties
2
2
1.1.3.
4
8
1.2.
1.2.1.
1.2.2.
1.2.3.
Relationship to other tax and non-tax treaties
Existence of conflicts and order of priority
The relationship of BITs to tax treaties
The relationship of BITs to non-tax treaties
13
13
13
16
1.3.
1.3.1.
1.3.2.
1.3.3.
Coverage of taxes and carve-out clauses
The meaning of taxation in tax carve-out clauses
The types of tax carve-out clauses
Impact of umbrella clauses on the coverage of BITs
and their implication for tax matters
17
17
20
Fair and equitable treatment and transparency
The interpretation and application of FET in tax
matters and constitutional principles
The protection of FET and access to justice in tax
matters
Common points and differences with the nondiscrimination principle
Transparency
23
1.4.
1.4.1.
1.4.2.
1.4.3.
1.4.4.
1.5.
1.5.1.
National treatment and most-favoured-nation
treatment
Their common policy rationale
v
22
23
24
25
25
26
26
Table of Contents
1.5.2.
1.5.3.
Their application in taxation matters in the absence
of a tax carve-out
REIO clauses
27
29
1.6.
1.6.1.
1.6.2.
1.6.3.
Taxation as expropriation
Expropriation and its application to taxation matters
Tax expropriation and the Yukos case
Expropriation and confiscatory taxation
30
30
32
36
1.7.
1.7.1.
Taxation and free transfer of capital
The application of provisions on free transfer of
capital to taxation
Protection of returns from investment under BITs
and EU law
38
1.7.2.
1.8.
1.8.1.
1.8.2.
Chapter 2:
Dispute settlement and awards
Types of arbitration and their institutional
framework in BITs
Arbitrating tax disputes under the different legal
frameworks of bilateral investment and tax treaties
38
39
40
40
41
Australia
Jeff Waincymer
45
2.1.
2.1.1.
2.1.2.
General framework – Policy considerations
Introduction
Australia’s tax and investment treaty policy
45
45
47
2.2.
Relation to other tax and non-tax treaties
51
2.3.
Coverage of taxes and carve-out clause
53
2.4.
Fair and equitable treatment (FET) and transparency
55
2.5.
National treatment (NT) and most-favoured nation
(MFN) treatment
57
2.6.
Taxation as expropriation
58
2.7.
Taxation and free transfer of capital
59
2.8.
Dispute settlement and awards
60
vi
Table of Contents
Chapter 3:
Austria
Lars Gläser and August Reinisch
71
3.1.
General framework
71
3.2.
Relationship to other tax and non-tax treaties
74
3.3.
Coverage of taxes and carve-out clause
75
3.4.
Fair and equitable treatment and transparency
78
3.5.
National treatment and most-favoured-nation
treatment
82
3.6.
Taxation as expropriation
87
3.7.
Taxation and free transfer of capital
90
3.8.
Dispute settlement and awards
91
Belgium
Edoardo Traversa and Isabelle Richelle
99
4.1.
General framework
99
4.2.
Relation to other tax and non-tax treaties
106
4.3.
Coverage of taxes and carve-out clause
108
4.4.
Fair and equitable treatment and transparency
109
4.5.
National treatment and most-favoured-nation clause
111
4.6.
Taxation as expropriation
113
4.7.
Taxation and free transfer of capital
115
4.8.
Dispute settlement and awards
117
Chapter 4:
vii
Table of Contents
Chapter 5:
Bosnia and Herzegovina
Samira Sulejmanovic and Azra Becirovic
123
5.1.
General framework
123
5.2.
Relationship to other tax and non-tax treaties
132
5.3.
Coverage of taxes and carve-out clause
133
5.4.
Fair and equitable treatment and transparency
135
5.5.
National treatment and most-favoured-nation
treatment
139
5.6.
Taxation as expropriation
141
5.7.
Taxation and free transfer of capital
143
5.8.
Dispute settlement and awards
144
Brazil
Luís Eduardo Schoueri and Ricardo André
Galendi Júnior
149
149
6.1.3.
6.1.4.
General framework
General overview of Brazilian DTCs and the nonratified BITs
Reasons for not entering into BITs
Economic argument
Incompatibilities with constitutional and other
domestic provisions
Brazil as a capital exporter
Brazil’s New Investment Treaty Model: The CFIA
154
157
159
6.2.
6.2.1.
6.2.2.
Relation to other tax and non-tax treaties
Investment treaty shopping
Conflict between a DTC and an investment treaty
163
163
165
6.3.
Coverage of taxes and carve-out clause
165
6.4.
Fair and equitable treatment and transparency
166
Chapter 6:
6.1.
6.1.1.
6.1.2.
6.1.2.1.
6.1.2.2.
viii
150
152
152
Table of Contents
6.5.
National treatment and most-favoured-nation
treatment
167
6.6.
Taxation as expropriation
167
6.7.
Taxation and free transfer of capital
170
6.8.
6.8.1.
6.8.2.
6.8.3.
Dispute settlement and awards
Investor-state arbitration
Arbitration in tax issues
Concluding remarks
171
171
174
175
Canada
Martha O’Brien
177
7.1.
7.1.1.
7.1.2.
7.1.3.
7.1.4.
General framework
Three generations of BITs
Canada’s double tax treaties
General standards and principles
Pre-establishment control of investment in Canada
177
177
178
180
181
7.2.
Relation to other tax and non-tax treaties
183
7.3.
7.3.1.
7.3.2.
7.3.3.
Coverage of taxes and carve-out clauses
Tax carve-outs in Canada’s BITs
The NAFTA tax carve-out
The CETA tax carve-out
186
186
187
188
7.4.
7.4.1.
7.4.2.
Fair and equitable treatment and transparency
Substantive standards
Tax administration and FET
191
191
194
7.5.
7.5.1.
7.5.2.
NT and MFN
General
MFN in Canada’s DTTs and BITs
194
194
195
7.6.
Taxation as expropriation
195
7.7.
7.7.1.
7.7.2.
Taxation and free transfer of capital
General obligations
Free movement of capital, CETA and tax provisions
197
197
197
Chapter 7:
ix
Table of Contents
7.8.
7.8.1.
7.8.2.
7.8.3.
Chapter 8:
8.1.
8.1.1.
8.1.2.
8.1.3.
8.2.
8.2.1.
8.2.2.
8.2.2.1.
8.2.2.2.
8.2.3.
8.2.4.
Dispute settlement and awards
General
Public debate on investment agreements
Denial of benefits under BITs and DTTs
199
199
201
202
Chile
Rodrigo Polanco Lazo and Felipe Yáñez
203
General framework
Chilean policy on double taxation treaties and
international investment agreements
Is there a Chilean model for IIAs or DTTs?
The role of investment contracts in Chile
203
Relationship to other tax and non-tax treaties
Are there overlaps between IIAs and DTTs?
Are there conflicts between IIAs and DTTs
concluded by Chile?
Treaty provisions dealing with cases of conflict
between IIAs and DTTs
Conflicts between IIAs and DTTs in the absence
of a dispute settlement provision
Conflicts between IIAs and other treaties or
agreements containing tax clauses
Conflicts between DTTs and other international
treaties protecting foreign investment
203
204
205
207
207
207
208
209
210
210
8.3.
8.3.1.
8.3.1.1.
8.3.1.2.
8.3.2.
Coverage of taxes and carve-out clauses
Carve-outs
Domestic tax autonomy
International tax autonomy
Umbrella clauses
210
211
211
212
212
8.4.
8.4.1.
Fair and equitable treatment and transparency
Impact of fair and equitable treatment provisions
on Chilean tax rules or administrative practice:
Relevant case law
Impact of the constitutional principle of equality
on the interpretation of FET clauses
Governmental practices or procedures
contravening the FET principle
Transparency obligations in Chilean BITs and FTAs
213
8.4.2.
8.4.3.
8.4.4.
x
213
215
216
217
Table of Contents
8.5.
8.5.1.
8.5.2.
8.5.3.
8.5.4.
8.5.5.
8.5.6.
8.5.7.
8.5.8.
8.6.
8.6.1.
8.6.2.
8.6.3.
National treatment and most-favoured-nation
treatment
Non-discrimination clauses in DTTs
Case law on NT and MFN clauses of Chilean IIAs
Non-discrimination clauses in Chilean DTTs vs.
Chilean IIAs
MFN clauses in Chilean IIAs vs. MFN rules in
WTO rules or FTAs
Comparing MFN clauses in Chilean DTTs with
Chilean IIAs
Selective application of MFN clauses in Chilean
IIAs
Tax-related cases or awards related to NT or MFN
clauses in Chilean IIAs
Regional economic integration organization
(REIO) clauses in Chilean BITs
218
218
221
222
222
224
224
224
225
8.6.4.
Taxation as expropriation
Expropriation provisions in Chilean IIAs
Case law related to expropriation
Legitimacy of taxes vs. “acquired rights” of
taxpayers
Jurisprudence on confiscatory taxes
226
227
8.7.
8.7.1.
8.7.2.
Taxation and free transfer of capital
Capital transfer provisions in Chilean IIAs
Effect of capital transfer clauses on tax provisions
227
227
228
8.8.
8.8.1.
8.8.2.
8.8.3.
8.8.4.
Dispute settlement and awards
Investor-state arbitration
Relevant cases and political debate
Dispute resolution provisions in IIAs and DTTs
Impact of BEPS on ISDS
229
229
229
230
230
China
Yansheng Zhu
233
9.1.
General framework
233
9.2.
Relationship to tax and non-tax treaties
237
9.3.
Coverage of taxes and carve-out clause
239
Chapter 9:
xi
225
225
226
Table of Contents
9.4.
Fair and equitable treatment
241
9.5.
National treatment and most-favoured-nation
treatment
243
9.6.
Taxation as expropriation
246
9.7.
Taxation and free transfer of capital
250
9.8.
Dispute settlement and awards
253
Czech Republic
Michal Radvan and Martin Švec
257
10.1.
General framework
257
10.2.
Relationship to other tax and non-tax treaties
261
10.3.
Coverage of taxes and carve-out clause
262
10.4.
Fair and equitable treatment (FET) and transparency 265
10.5.
National treatment and most-favoured-nation
treatment
269
10.6.
Taxation as expropriation
271
10.7.
Taxation and the free transfer of capital
274
10.8.
Dispute settlement and awards
277
France
Thomas Dubut and Tovony Randriamanalina
283
General framework
The French BIT network
The French free trade agreements network
The French BIT model
Investment contracts and investment authorizations
BITs and the BEPS Project
283
283
287
288
289
290
Chapter 10:
Chapter 11:
11.1.
11.1.1.
11.1.2.
11.1.3.
11.1.4.
11.1.5.
xii
Table of Contents
11.2.
11.2.1.
11.2.2.
Relation to other tax and non-tax treaties
Relation to DTTs concluded by France
Relation to other international agreements
concluded by (or binding on) France
290
290
11.3.
Coverage of taxes and carve-out clause
292
11.4.
11.4.1.
11.4.2.
Fair and equitable treatment (FET) and transparency
FET and taxation
Judicial review of investment agreements with
regard to FET
BITs and transparency
294
294
11.4.3.
11.5.
11.5.1.
292
296
297
11.5.2.
NT and MFN treatment
Restrictions to the scope of NT and MFN clauses
in French BITs
Taxation and NT and MFN clauses in French BITs
297
299
11.6.
Taxation as expropriation
299
11.7.
11.7.1.
11.7.2.
Taxation and free transfer of capital
General remarks
BIT free transfer provision and exit tax
300
300
301
11.8.
11.8.1.
11.8.2.
301
302
11.8.3.
11.8.4.
Dispute settlement and awards
Investor-state arbitration in French BITs
Arbitration between the contracting states in
French BITs
Arbitration clauses in French DTTs
Treaty shopping
304
304
306
11.9.
Conclusion
307
Germany
Arno E. Gildemeister
309
12.1.
12.1.1.
12.1.2.
General framework
Treaty practice
Tax stabilization guarantees and the Vattenfall case
309
309
311
12.2.
Relationship between investment and tax treaties
312
12.3.
Coverage of taxes and carve-out clauses
316
Chapter 12:
xiii
297
Table of Contents
12.4.
Fair and equitable treatment and transparency
318
12.5.
National treatment and most-favoured-nation
treatment
319
12.6.
Taxation as expropriation
321
12.7.
Taxation an1d free transfer of capital
323
12.8.
Dispute settlement and awards
324
Greece
Panayotis Glavinis and Georgios Matsos
327
327
327
328
13.1.6.
13.1.7.
13.1.8.
General framework
Greek investment and tax treaty policy
Greek BIT Model
DTTs: Compliance with the OECD Model Tax
Convention
Investment authorizations
Greece’s national investment code (Law Decree
2687/1953
Law Decree 3894/2010 on strategic investments
Investment agreements
Influence of the BEPS Project
13.2.
Relationship to other tax and non-tax treaties
337
13.3.
Coverage of taxes and carve-out clause
338
13.4.
Fair and equitable treatment and transparency
339
13.5.
13.5.1.
13.5.2.
National treatment and most-favoured-nation
treatment
Interaction with tax law
Compatibility with EU treaties and EU law
342
342
345
13.6.
Taxation as expropriation
345
13.7.
Taxation and free transfer of capital
348
13.8.
Dispute settlement and awards
350
Chapter 13:
13.1.
13.1.1.
13.1.2.
13.1.3.
13.1.4.
13.1.5.
xiv
329
330
331
332
333
337
Table of Contents
Chapter 14:
India
Poonam Khaira Sidhu
353
14.1.
14.1.1.
14.1.2.
14.1.3.
14.1.4.
14.1.5.
General framework: Policy considerations
Treaty-making powers under the Constitution of India
Indian bilateral or multilateral free trade agreements
Indian bilateral investment treaties
Review of the Model BIPA and the new Model BIT
Other IIAs and investment-related instruments (IRIs)
353
353
354
354
355
355
14.2.
14.2.1.
14.2.2.
Relation to other tax and non-tax treaties
Indian double tax treaties
Disputes under Indian BITs
356
357
358
14.3.
14.3.1.
358
14.3.2.
14.3.3.
Coverage of taxes and carve-out clause
Investment contracts, concessions and tax
stabilization clauses
Umbrella clauses
Increasing number of tax disputes
359
360
361
14.4.
14.4.1.
Fair and equitable treatment and transparency
Transparency clauses in the Model BIT
363
364
14.5.
National treatment and most-favoured-nation
treatment
Invoking MFN to import favourable clauses in
other BITs
365
14.6.
Taxation as expropriation
366
14.7.
Taxation and free transfer of capital
368
14.8.
14.8.1.
14.8.2.
Dispute settlement and awards
Conclusion
Epilogue
369
371
373
Luxembourg
Anne Selbert and Katharina Schiffmann
375
General framework
Double tax treaties
375
375
14.5.1.
Chapter 15:
15.1.
15.1.1.
xv
365
Table of Contents
15.1.2.
15.1.3.
Bilateral investment treaties
Bilateral or multilateral free trade agreements
377
378
15.2.
15.2.1.
15.2.2.
Relationship to other tax and non-tax treaties
Relationship to tax treaties
Relationship to other international treaties
379
379
380
15.3.
Coverage of taxes and carve-out clause
380
15.4.
Fair and equitable treatment and transparency
381
15.5.
National treatment and most-favoured-nation
treatment
383
15.6.
Taxation as expropriation
384
15.7.
15.7.1.
15.7.2.
Taxation and free transfer of capital
Belgium-Luxembourg Model BIT
Existing BITs
385
385
385
15.8.
15.8.1.
Dispute settlement and awards
Dispute resolution under the Belgium-Luxembourg
Model BIT
Disputes and transparency
DTTs and arbitration
BEPS Action 14 Plan
BEPS Action 6
EU Arbitration Convention
386
15.8.2.
15.8.3.
15.8.4.
15.8.5.
15.8.6.
Chapter 16:
386
387
388
388
389
389
The Netherlands
Daniël Smit
391
16.1.
16.1.1.
16.1.2.
General framework
Introduction
The Dutch Model BIT
391
391
393
16.2.
Relationship to tax and non-tax treaties
395
16.3.
Coverage of taxes and carve-out clause
397
16.4.
Fair and equitable treatment and transparency
398
xvi
Table of Contents
16.5.
National treatment and most-favoured-nation
treatment
400
16.6.
Taxation as expropriation
402
16.7.
Taxation and free transfer of capital
404
16.8.
16.8.1.
16.8.2.
Dispute settlement and awards
Dispute settlement awards under Dutch BITs
Recent trends in dispute settlement: A growing
number of dispute settlements and growing
scepticism about the current dispute settlement
system
Treaty shopping: Anti-BEPS legislation through
the backdoor?
405
405
16.8.3.
Chapter 17:
406
409
Poland
Karolina Tetłak
415
17.1.
General framework
415
17.2.
Relationship to other tax and non-tax treaties
419
17.3.
Coverage of taxes and carve-out clause
421
17.4.
Fair and equitable treatment and transparency
424
17.5.
National treatment and most-favoured-nation
treatment
428
17.6.
Taxation as expropriation
430
17.7.
Taxation and free transfer of capital
434
17.8.
Dispute settlement and awards
435
Portugal
Tiago Duarte and Pedro Ribeiro de Sousa
441
18.1.
General framework
441
18.2.
Relationship to other tax and non-tax treaties
445
Chapter 18:
xvii
Table of Contents
18.3.
Coverage of taxes and carve-out clause
448
18.4.
Fair and equitable treatment and transparency
448
18.5.
National treatment and most-favoured-nation
treatment
450
18.6.
Taxation as expropriation
452
18.7.
Taxation and free transfer of capital
456
18.8.
Dispute settlement and awards
459
Chapter 19:
Russia
Danil V. Vinnitskiy
461
19.1.
General framework
461
19.2.
Relationship to other tax and non-tax treaties
466
19.3.
Coverage of taxes and carve-out clause
468
19.4.
Fair and equitable treatment and transparency
470
19.5.
National treatment and most-favoured-nation
treatment
474
19.6.
Taxation as expropriation
478
19.7.
Taxation and free transfer of capital
479
19.8.
Dispute settlement and awards
480
Serbia
Svetislav V. Kostić, Marko Jovanović and
Gordana Ilić-Popov
483
20.1.
General framework
483
20.2.
Relationship to other tax and non-tax treaties
486
20.3.
Coverage of taxes and carve-out clause
487
Chapter 20:
xviii
Table of Contents
20.4.
Fair and equitable treatment and transparency
488
20.5.
National treatment and most-favoured-nation
treatment
492
20.6.
Taxation as expropriation
497
20.7.
Taxation and free transfer of capital
500
20.8.
Dispute settlement and awards
501
Chapter 21:
South Africa
Annet Wanyana Oguttu and Rafia de Gama
505
21.1.
21.1.1.
21.1.1.1.
21.1.1.2.
21.1.2.
21.1.2.1.
21.1.2.2.
General framework
How DTTs become part of domestic law
Use of Model DTTs
Criteria for selecting treaty partners
How BITs become part of domestic law
Use of Model BITs
Criteria for selecting BIT contracting states
505
506
506
507
508
509
510
21.2.
Relationship to other tax and non-tax treaties
511
21.3.
Coverage of taxes and carve-out clauses
513
21.4.
21.4.1.
Fair and equitable treatment and transparency
The impact of the principle of equality on
the interpretation of FET clauses
Practices or procedures by tax authorities or tax
courts contrary to FET as well as tax laws, and
unsatisfactory rules for due process
Transparency in FET provisions in the RSA’s BITs
514
21.4.2.
21.4.3.
21.5.
21.5.1.
21.5.2.
21.5.3.
National treatment and most-favoured-nation
treatment
Comparison of non-discrimination clauses in DTTs
and NT and MFN clauses in BITs
Similarities between MFN clauses in BITs and
MFN rules in WTO rules or free trade agreements
Comparison of MFN clauses in RSA’s DTTs with
those in BITs
xix
514
515
516
516
518
518
519
Table of Contents
21.6.
21.6.1.
21.6.2.
21.6.3.
21.7.
21.7.1.
21.8.
21.8.1.
21.8.2.
Chapter 22:
Taxation as expropriation
Provisions on expropriation in BITs
Circumstances under which taxation may amount
to expropriation under a BIT and the criteria to
distinguish indirect expropriation from legitimate
regulation
The legitimacy of taxes: Are taxes considered
punitive or “normal governmental conduct”?
Taxation and free transfer of capital
Does any withholding tax on dividends, interest
or profits in RSA come under the scope of capital
transfer provisions?
Dispute resolution and awards
Legal barriers to arbitration clauses in BITs
The appropriateness of investor-state arbitration
as a dispute settlement mechanism for arbitration
of tax disputes – BEPS Action 14
520
520
520
524
524
524
525
528
528
United States
Yariv Brauner
531
22.1.
22.1.1.
22.1.2.
22.1.3.
22.1.4.
22.1.5.
22.1.6.
General framework
Introduction
Current situation
Negotiation policies
Models
Investment contracts and authorizations
BEPS
531
531
532
533
534
536
536
22.2.
22.2.1.
22.2.2.
Relationship to other tax and non-tax treaties
Conflicts between BITs and DTTs
Conflicts with other treaties
536
536
537
22.3.
Coverage of taxes and carve-out clause
538
22.4.
22.4.1.
22.4.2.
22.4.3.
Fair and equitable treatment and transparency
General
Constitutional law aspects
Due process
540
540
541
541
xx
Table of Contents
22.4.4.
22.4.5.
FET clauses and tax non-discrimination
Transparency obligations
541
541
22.5.
National treatment and most-favoured-nation
treatment
542
22.6.
Taxation as expropriation
543
22.7.
22.7.1.
22.7.2.
22.7.3.
Taxation and free transfer of capital
General
Withholding taxes
Exit provisions
544
544
544
544
22.8.
22.8.1.
22.8.2.
22.8.3.
22.8.4.
Dispute settlement and awards
Investor-state arbitration
Disputes
Arbitration in DTTs
Investor-state arbitration and the mutual agreement
procedure in DTTs
BEPS
544
544
545
545
22.8.5.
List of Contributors
549
549
551
xxi
Preface
Preface
The relationships between taxation and bilateral investment treaties are
traditionally the subject of separate studies by scholars. However, the real
world bundles them together, thereby often raising intricate technical questions concerning the differently shaped tax carve-out clauses contained in
bilateral investment treaties.
We have conceived this book to fill the gap between those two separate
lines of studies and provide a comprehensive analysis of the relationships
between taxation and bilateral investment treaties. Using the interdisciplinary research methodology that has already characterized various publications coordinated by our institute at WU Vienna, this book is the end result
of a research cluster that we initiated several years ago and aims at providing a theoretical and practical approach to its subject. It has been enriched
by national reports that were drafted by tax and bilateral investment treaty
experts based on a questionnaire, and a general report that highlights the
most relevant points contained in the national reports together with our
own scientific contribution.
The first drafts of the national reports were presented at our 2015 Summer
Conference in Rust, leading to a vivid debate and numerous thought-provoking suggestions, which have prompted the national reporters to improve
their own contributions to this book.
The production process of this book, which was supported by the funds
of the FESTO Fellowship, has included a critical revision of all national
reports by a team from our institute – among others, Ege Berber Villeneuve, who is writing her own interdisciplinary doctoral thesis in parallel
with this research project and book, and Laura Turcan. At the time of the
production process of this book, both worked under the supervision of the
general reporter and made a valuable contribution to ensuring the scientific
quality of all national reports. Our warmest thanks to them!
Once more we have been fortunate to have Renée Pestuka coordinating the
logistics of book production. Her commitment, efficiency and friendly approach are unique and an example to us all. Finally, we would also like to
thank Jules Macrory for her support and Margaret Nettinga for her highly
professional linguistic editing.
xxiii
Preface
We trust that our readers will appreciate our efforts and find this book useful for theoretical and practical analyses of the problems concerning the
relationships between taxation and bilateral investment treaties.
Ponza-Vienna, 29 July 2016
The editors
Michael Lang
Jeffrey Owens
Pasquale Pistone
Alexander Rust
Josef Schuch
Claus Staringer
xxiv
Chapter
1
Sample
Content
General Report
Pasquale Pistone
1.0. Introduction
The bilateral investment treaty (BIT) and double tax treaty (DTT) networks are not only among the most extensive treaty networks in existence,
with roughly 2,300 BITs1 and 3,000 DTTs2 currently in force, but also the
most influential from the perspective of the protection and treatment that
they provide to individuals. While BITs aim to protect foreign investors
from discrimination, uncompensated expropriation and arbitrariness, and
provide them with certainty concerning the legal consequences of their
investment, the goal of DTTs is to eliminate the double taxation that might
arise due to cross-border economic activities. Lastly, both of the treaty
types share the goal of promoting cross-border investment and thus economic growth.
In the new post-economic crisis and post-BEPS environment, taxation is
becoming increasingly important both in the public opinion and to countries struggling to recover from the effects of the economic crisis and to
balance their budgets by increasing tax levels. Therefore, tax is becoming
a crucial factor in foreign investment. Despite the interrelation between
investment and taxation, and the extensive number of BITs and DTTs being signed, little research has been undertaken on the potential overlap and
interaction between international taxation and BIT law, with its potential
consequences for foreign investment.
In order to examine this relationship, the Institute for Austrian and International Tax Law invited academics, practitioners and government officials
involved in the negotiation of these treaties to the 2015 Summer Conference in Rust. The conference was based on a series of short input statements prepared by national reporters from 343 different countries, based on
1.
See UNCTAD Database, Investment Policy Hub, available at http://investment
policyhub.unctad.org/IIA.
2.
See IBFD Tax Treaty Database.
3.
Australia, Austria, Belgium, Bosnia and Herzegovina, Brazil, Chile, China, the
Czech Republic, France, Germany, Greece, Hungary, India, Italy, Luxembourg, Mex-
1
Chapter 1 - General Report
a questionnaire devised by the Institute’s staff. The questionnaire and conference covered eight different subtopics dealing with the scope of the two
types of treaties, as well as several substantial provisions found in BITs,
e.g. the fair and equitable treatment (FET), national treatment (NT) and
most-favoured-nation (MFN) treatment standards. The input statements
consisted of excerpts from the draft national reports prepared by the conference attendees.
Following the conference, where high-level discussions on the finer points
of law were held, the national reporters updated their reports by incorporating the feedback received during the conference and the main points raised
during the discussions. This general report is based on the final national
reports from 21 countries,4 of which 13 are OECD member countries and
11 are EU Member States, as well as the BRICS, Serbia and Bosnia. While
the general report highlights the most important points of the national reports, it also includes the personal views of the reporter and is based on the
personal technical knowledge of the author as well as the results of the WU
research group. Thus, where relevant, further information was added from
additional sources.
The general report follows the outline of the questionnaire and the reports,
and therefore is composed of eight different sections, which focus on: (i)
the framework for BITs and DTTs; (ii) their relationship with other treaties
(tax and non-tax); (iii) whether taxes are in the scope of BITs; (iv) the FET
standard and transparency under BITs; (v) the NT and MFN standards in
BITs; (vi) the prohibition of expropriation in BITs; (vii) the free transfer of
capital provisions in BITs; and (viii) dispute settlement under DTTs and
BITs, and investment awards.
1.1. General framework
1.1.1. Policy rationale of bilateral investment and tax treaties
BITs and tax treaties have different policy rationales, which can be described briefly as follows.
ico, the Netherlands, Peru, Poland, Portugal, the Republic of Serbia, Romania, Russia, the Slovak Republic, Slovenia, Spain, South Africa, Sweden, Switzerland, Turkey,
Ukraine, the United Kingdom, the United States and Venezuela.
4.
Australia, Austria, Belgium, Bosnia and Herzegovina, Canada, Chile, China, the
Czech Republic, France, Germany, Greece, India, Italy, Luxembourg, the Netherlands,
Poland, Portugal, Russia, Serbia, South Africa and the United States.
2
General framework
The main policy rationale for concluding a BIT is to provide a legal framework that protects non-nationals and encourages them to invest their capital
in a given country, often a developing country or an economy in transition.5
BITs do not protect nationals, since (at least in a democratic state) their
social contract with the state provides them with sufficient legal protection.
Instead, they strengthen the rights of foreigners and prevent any expropriation of their investment for reasons that may be connected with policy
changes in the government of a country.6
Arbitration mechanisms allow for an impartial and depoliticized framework for disputes between the state and the investor, taking into consideration that governments can change legislation, and provide for solutions
based on authentic interpretation that in fact override the decisions of national courts. Significant examples are seen in the disputes between the
United States and Cuba,7 or disputes regarding the Suez Canal.8
Bilateral tax treaties are concluded for the main purpose of regulating the
exercise of tax sovereignty in cross-border situations, which they restrict
as compared to the conditions established by domestic law. Entitlement to
the protection offered by bilateral tax treaties is determined by residence
in either contracting state. They create rights and obligations for both contracting states with a view to preventing, mitigating or providing relief for
international double taxation. However, bilateral tax treaties are highly
vulnerable to tax arbitrage and for this reason have developed over the past
decades mainly around model conventions. This secures consistency in the
exercise of tax jurisdiction.
In the absence of an international tax court, for many years disputes over
bilateral tax treaties were exclusively adjudicated before the domestic
5.
D. Smit, The Netherlands, sec. 16.8.3. indicates that, since nationality is determined by domestic law, the mere fact of setting up a Netherlands company gives entitlement to protection under the BIT, thus, in a way, fostering certain forms of treaty
shopping. However, some countries, such as Canada, include in their investment treaties – see the Canada-China treaty – specific clauses to prevent this phenomenon. Other
national BIT models, such as the Swiss one, include a real economic activity requirement for granting non-nationals treaty protection.
6.
For an introductory note on the topic, see Stefano Castagna, ICSID Arbitration:
BITs, Buts and Taxation – An Introductory Guide, 70 Bulletin for International Taxation 7 (2016), pp. 370-378.
7.
See Walter Fletcher Smith Claim (Cuba, USA), Reports of International Arbitral
Awards, Vol. II (1949), pp. 913-918.
8.
See J. Yackee, The First Investor-State Arbitration: The Suez Canal Company v
Egypt (1864), The Journal of World Investment & Trade, Vol. 17 (2016), pp. 401-462.
3
Chapter 1 - General Report
courts of one of the contracting states or addressed by the two contracting states in the framework of joint administrative procedures, generally
known as mutual agreement procedures (MAPs), with no actual rights for
taxpayers. Recently, arbitration finally made its way into bilateral tax treaties through the 2010 Update to Article 25(5) of the OECD Model.
A comparison between the rationale of bilateral tax and investment treaties
shows the former to be instruments of public international law for regulating conflicts between states and the latter to be instruments of private international law by which states bind themselves to recognizing the protection
of rights of investors. However, both affect the legal sphere of persons.
Therefore, a modern vision of tax treaties should draw on experience with
BITs when addressing potential issues arising in the framework of arbitration. Vice versa, BITs should look to the substance of tax treaties so that the
actual implications of tax carve-out clauses can be understood, for instance
with a view to deciding whether MAPs can constitute actual dispute settlement mechanisms.
1.1.2. A common dilemma: Concluding bilateral treaties or
doing without them?
Bilateral investment and tax treaties are prominent features of the international treaty policies of most countries.
Germany has been a policy forerunner in both bilateral investment and tax
treaties.9 In general, some European countries10 have a more complete BIT
network than non-European countries with similar economies.11
Some states have a limited network of BITs and others have no BITs at all.12
There is hardly any country in the world currently that does not have BITs.
Tax treaties are most frequently found among major trading partners,13
9.
See A. Gildemeister, Germany, sec. 12.1.1.
10. Reports show a trend in founding EU Member States to have a more extensive
network of BITs than non-European countries, for instance Canada and the United
States.
11.
For example, the Netherlands currently has 91 and the United Kingdom has 96
BITs in force, while the United States has 40 and Canada has 30 BITs in force. See
UNCTAD Database, Investment Policy Hub, available at http://investmentpolicyhub.
unctad.org/IIA.
12. Brazil is a good example of this category. See L. Schoueri and R. Galendi Jr., Brazil.
13. See J. Waincymer, Australia, sec. 2.1.2. and Y. Brauner, United States, sec.
22.1.3.
4
General framework
sometimes have different features in bilateral relations with developing
countries14 and are seldom concluded with low-tax jurisdictions.15
The difference in the use of bilateral investment and bilateral tax treaties
may find various explanations, three of which are worth mentioning here.
Historically, the first bilateral tax treaties were concluded as early as in
the 19th century. The first modern BIT only appeared in 195916 as part of
a more general worldwide trend to provide international legal protection
to investment, a trend that also gave rise to, among other instruments, the
United Nations Conference on Trade and Development (UNCTAD) and
the International Centre for Settlement of Investment Disputes (ICSID) arbitration systems for disputes on international investment.
Multilateral instruments were developed for the protection of investment
and trade liberalization, but hardly any can be found in international taxation, which was essentially driven by bilateralism steered by model conventions drafted under the auspices of the League of Nations, the Organisation for European Economic Co-operation (OEEC) and the Organisation
for Economic Co-operation and Development (OECD).
Furthermore, since the late 18th century17 until after the end of the Second World War,18 developed countries have concluded friendship and com14. Economists are often sceptical about their impact on foreign direct investment,
see P. Egger, M. Larch, M. Pfaffermayr and H. Winner, The Impact of Endogenous Tax
Treaties on Foreign Direct Investment: Theory and Evidence, 39 Canadian Journal of
Economics 3 (2006), pp. 901-931. However, previous interdisciplinary and legal studies
conducted at WU Vienna question whether this outcome may have been partly biased
by the absence of a sufficiently specific analysis of the comprehensive set of clauses
contained in the tax treaties of each country. See further on this in F. Barthel, M. Busse,
R. Krever and E. Neumayer, The Relationship between Double Taxation Treaties and
Foreign Direct Investment, in M. Lang et al. (eds.), Tax Treaties: Building Bridges
between Law and Economics (IBFD Publications, 2010), pp. 3-18; and P. Pistone, Tax
Treaties with Developing Countries: A Plea for New Allocation Rules and a Combined
Legal and Economic Approach, id., pp. 413-414.
15. For the purpose of our research, the concept of bilateral tax treaty indicates a
general tax treaty concluded with a view to countering international double taxation
on income and capital. Concluding such treaties with low-tax jurisdictions is, on the
one hand, not particularly needed and, on the other hand, exposes high-tax countries
to double non-taxation, especially when the exemption method relieves double taxation
and prevents the exercise of tax jurisdiction in respect of foreign-sourced income.
16. See A. Gildemeister, Germany, sec. 12.1.1.; and T. Dubut and T. Randriamanalina, France, sec. 11.1.1.
17.
D. Smit, Netherlands, sec. 16.1.1.; and Y. Brauner, United States, sec. 22.1.1.
18. For instance, the friendship and commerce treaty between the Netherlands and
the United States was concluded in 1956, i.e. shortly before the creation of the Euro-
5
Chapter 1 - General Report
merce treaties.19 Such treaties are the precursors of the modern BITs with
generally less extensive protection for investors than that currently offered
by BITs.20
Interestingly, numerous friendship and investment treaties include(d) NT
and MFN clauses that are also applicable to taxes and, in several cases,
exclude the exercise of tax jurisdiction on non-nationals or foreigners. At
the same time, such a vision of economic allegiance has lost momentum in
the world of international taxation.21
Further, we suggest that the technical studies concerning the exercise of
tax sovereignty in cross-border situations, prepared with particular intensity for the 1963 OECD Model, have gradually contributed to awareness of
the complexity of this domain and facilitated the diffusion of tax carve-out
clauses in BITs and the less frequent inclusion of MFN treatment in bilateral tax treaties.22
From their early days, BITs have operated as legal instruments for capitalexporting countries to achieve a stable legal framework in respect of outbound investment and to secure the transfer of returns from such investment.
pean Economic Community (EEC). The existence of this specific treaty (and of that
between Ireland and the United States, concluded before the former country joined the
EEC) raises interesting issues on the protection of US investment in Europe in respect
of the State aid procedures on tax matters.
Furthermore, the United States continued concluding friendship and commerce treaties
at a time when other countries, for instance Germany, had already changed their policy
with a preference for BITs. An emblematic case in this respect is the German (bilateral
investment) and US (friendship and commerce) treaties concluded with Pakistan in
1959 and 1961, respectively.
19.
Interestingly, E. Traversa and I. Richelle, Belgium, sec. 4.1. indicate that some
Belgian friendship and commerce treaties concluded in the 19th century (with South
Africa, Tunisia and Venezuela) are still in force.
20. The difference between the two types of treaties mainly lies in the absence of
actionable standards of conduct in respect of foreign investment in friendship and commerce treaties, which are included in BITs.
21.
As indicated by the IBFD International Tax Glossary on the basis of the 1923 report of the League of Nations, economic allegiance was a doctrine according to which
a given jurisdiction’s right to tax is determined by reference to the relative proximity of
certain economic characteristics to that jurisdiction as compared to another, competing
jurisdiction.
22. However, as I. Hofbauer, Das Prinzip der Meistbegünstigung im grenzüberschreitenden Ertragssteuerrecht (Linde Verlag, Vienna, 2005), p. 193, rightly indicates, numerous tax treaties include MFN clauses. A comprehensive and updated survey of tax treaties with MFN clauses is currently being conducted by IBFD.
6
General framework
Two examples confirm our view and can be mentioned here. French 23
policy throughout the 1960s promoted BITs with unilateral effects in
favour of French investors abroad. German policy prioritized developing countries when it concluded its first BITs, possibly due to fear that
legal instability in such countries could pose immediate threats to German outbound investment. This trend can also be noted in other BIT
networks.
However, the perception gradually spread throughout the world that the
conclusion of a BIT could also be in the interest of countries wishing to attract inbound investment,24 since the acceptance of limitations to national
sovereignty associated with the conclusion of such a treaty would be an
effective confirmation of a serious commitment to give investment legal
protection along internationally accepted standards, also sheltering it to
some extent from possible policy changes.25
Although BITs reflect the aspiration to secure legal stability, sometimes
even specifically reflected in “stabilization” clauses,26 practice shows that
national policies do change over time27 and international obligations contracted by a given country cannot be entirely open-ended or completely
prevent a country from adapting its own legislation when appropriate.28
Long-term stability in legislation nevertheless represents an important ele23. See T. Dubut and T. Randriamanalina, France, sec. 11.1.1.
24. M. Sornarajah, The International Law on Foreign Investment (Cambridge University Press, 2010), p. 229, questions this perception in the absence of empirical evidence that confirms it, but more recent econometrical studies conducted in the Netherlands prove the contrary. A. Lejour and M. Salfi, The Regional Impact of Bilateral
Investment Treaties on Foreign Direct Investment, CPB Discussion Paper from CPB
Netherlands Bureau for Economic Policy Analysis (2015), p. 2.
25. See Y. Zhu, China, sec. 9.1.
26. Stabilization clauses have become a popular demand of investors seeking to invest in developing countries. They are, however, rarely used in developed countries,
since they are largely considered unconstitutional in that they go against the widely
accepted principle that one legislature cannot bind a future legislature, and that an
executive act of government cannot bind a legislative body.
27. A good example of this kind of issue is the Vattenfall case. A change in German nuclear power policy compelled the investor, a Swedish state-owned company,
to sue Germany before the ICSID Arbitration Court under the Energy Charter. This
case, which was still pending (case ICSID ARB/12/12) at the time this report was
drafted, shows that good reasons may cause a country to reconsider its previous
decisions, thus leading to the question of whether the protection of the investment
in fact represents the source of an absolute legal restriction on the decisions of a
country.
28. Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v. The Government of Mongolia, UNCITRAL, Award on Jurisdiction and Liability of 28 Apr. 2011, para. 302.
7
Chapter 1 - General Report
ment, on which business decisions rely heavily. Therefore, whether or not
secured by the existence of a BIT, this type of policy is particularly important to create favourable inbound investment.
The obligations assumed by a country under a BIT should rather be read
within such a framework, as an expression of the binding commitment
not to introduce arbitrary changes in national legislation, judicial and administrative practice that could lead to expropriation of the foreign investment.
1.1.3. Policy trends, models and developments in BITs and
tax treaties
The emergence of both types of bilateral treaties is largely influenced by the
proactive approach of developed countries, pursuing the goals of protecting outbound investment and preventing international double taxation.29
All other states are usually players on the sideline, left with the sole policy
option of whether or not to conclude the bilateral treaty, but with little or
no power as to the content of such a treaty.30 The search for policy consistency should therefore focus on the former, rather than the latter group of
countries.
We shall now address the criteria for selecting treaty partners, the convergence among bilateral treaties, including the role of model conventions,
and provide some additional information on recent and ongoing developments, including the shift of competence within the European Union in
matters of trade and investment, and the impact of the BEPS project on
both types of bilateral treaties.
Developed countries seem to prioritize the conclusion of BITs in geographical areas that are more receptive to inbound investment and gradually complete their network with treaties with all (or most) countries in that
29. D. Smit, Netherlands, sec. 16.1.2. indicates that the Netherlands sometimes carries out negotiations of both types of bilateral treaties in the framework of a single
package deal.
30. Changes in economic power of countries may alter their role in this field
as well. Gradually, Brazil became a significant capital exporter for the region and
changed its attitude towards investment treaties. It developed a new investment treaty
model. See also L. Schoueri and R. Galendi Jr., Brazil, sec. 6.1.3. China underwent
similar economic development and subsequent change in BIT policy, see Y. Zhu,
China, sec. 9.1.
8
List of Contributors
Editors
Michael Lang
Michael Lang is Head of the Institute for Austrian and International Tax
Law. He is Academic Director of the LLM Program in International Tax
Law and Speaker of the Doctoral Program in International Business Taxation (DIBT) at WU (Vienna University of Economics and Business).
Jeffrey Owens
Jeffrey Owens is Director of the WU Global Tax Policy Center of the Institute for Austrian and International Tax Law, WU (Vienna University of
Economics and Business), and former Head of the OECD Centre for Tax
Policy and Administration.
Pasquale Pistone
Pasquale Pistone holds the Ad Personam Jean Monnet Chair in European
Tax Law and Policy at WU (Vienna University of Economics and Business). He is also an associate professor of tax law at the University of Salerno, Italy, and the Academic Chairman of IBFD.
Alexander Rust
Alexander Rust is a professor at WU (Vienna University of Economics and
Business).
Josef Schuch
Josef Schuch is a professor at WU (Vienna University of Economics and
Business), and a partner at Deloitte Austria.
Claus Staringer
Claus Staringer is a professor at WU (Vienna University of Economics and
Business), and a principal consultant with the law firm Freshfields Bruckhaus Deringer.
551
List of Contributors
Assistant Editors
Ege Berber Villeneuve is currently a PhD candidate in the Doctoral Program in International Business Taxation (DIBT) at WU (Vienna University
of Economics and Business). She holds a law degree from Koç University
(Istanbul), a master’s degree in public law from Istanbul University and
an LLM finance degree from Goethe University (Frankfurt). During the
preparation of this publication, Ege was a recipient of DOC Fellowship
from the Austrian Academy of Sciences at the Institute for Austrian and International Tax Law, WU (Vienna University of Economics and Business).
Laura Turcan is a PhD candidate in the Doctoral Program in Business Law
at WU (Vienna University of Economics and Business). She holds a master’s degree from the same university.
Authors
Azra Becirovic
Azra Becirovic is senior advisor for fiscal affairs at the Ministry of Finance and Treasury of Bosnia and Herzegovina and a PhD candidate in
economics at Sarajevo School of Science and Technology, Bosnia and Herzegovina, and the University of Buckingham, United Kingdom. She is also
President of the Fiscal Association in Bosnia and Herzegovina, a branch of
the International Fiscal Association.
Yariv Brauner
Yariv Brauner is a professor of law at the Levin College of Law at the
University of Florida. He joined the Florida faculty in 2006, after teaching at New York University, Northwestern University and Arizona State
University. He has been a Visiting Professor and a guest speaker at various
universities in the United States and abroad. He is the author of several
articles published in professional journals and law reviews, and a co-author
of US International Taxation – Cases and Materials (with Reuven S. AviYonah and Diane M. Ring), now in its third edition.
Rafia de Gama
Rafia de Gama LLB, LLM (University of Pretoria) is currently pursuing a
PhD in international law at Leiden University. Rafia de Gama has an interest in international investment law and international aviation law.
552
List of Contributors
Tiago Duarte
Tiago Duarte holds a PhD in Public Law and is a professor of constitutional
law, administrative law and international investment arbitration at Nova University Law School in Lisbon. He is also a partner at the PLMJ – Law Firm,
where he works in the public law and arbitration departments. He is the chairman of the Investment Arbitration Council of the Portuguese Arbitration Association and has been assisting the Portuguese Government in drafting a
new model BIT. Tiago Duarte is a former Visiting Fellow of the Cambridge
University, where he did post-doc research regarding ICSID Arbitration at
the Lauterpacht Centre for International Law. He has published several articles on public law and investment arbitration, and is regularly invited as
speaker at conferences and postgraduate courses in Portugal and abroad.
Thomas Dubut
Thomas Dubut holds an LLM in tax law from the Sorbonne Law School
(France). He has taught tax law at French universities (currently at the
Sorbonne Law School and at Paris Dauphine University) for more than
ten years and has been a visiting research fellow at WU (Vienna University of Economics and Business) and at the National University of Athens
(Greece). He is currently advisor for the International Monetary Fund,
Washington DC (LEG).
Arno Gildemeister
Arno Gildemeister (Dr iur (University Münster)/Docteur en droit (ParisEst), 2011) is a lecturer at the Ecole de droit, Sciences Po, Paris (since
2014) and an academic advisor at the International Investment Law Center
Cologne (IILCC), University of Cologne (since 2012). Arno is also an independent mediator and arbitrator and dispute resolution lawyer and has
founded ACCORD GbR, an institution specializing in the conciliation of
technical and construction disputes. He is Counsel and Head of Dispute
Resolution at TÜV Rheinland Group (since 2014). Previously, he worked
as Rechtsanwalt/Avocat at Heuking Kühn Lüer Wojtek, Düsseldorf, Arbitration and Litigation (2012-2014), as Rechtsanwalt/Avocat at Shearman
& Sterling LLP, Paris, International Arbitration (2009-2012) and as Rechtsanwalt at Epp & Kühl, Strasbourg, French and Cross-Border Business
Law (2006-2008). Arno is the author of L’arbitrage des différends fiscaux
en droit international des investissements (LGDJ 2013) and other publications dealing with the interfaces between taxation and arbitration.
Ricardo André Galendi Jr.
Ricardo André Galendi Júnior holds an LLB from the University of São
Paulo. He is currently a Master’s candidate at the University of São Paulo
553
List of Contributors
and an associate at Lacaz Martins, Pereira Neto, Gurevich & Schoueri Advogados.
Lars Gläser
Dr Lars Gläser is an attorney-at-law with Schindler Attorneys in Vienna.
He specializes in Austrian and international tax law, in particular tax litigation, including cross-border mutual agreement and arbitration procedures.
After his graduation in law and business administration, Lars worked for
more than four years as research associate at the University of Linz and the
International Fiscal Association (IFA) at the International Bureau of Fiscal
Documentation (IBFD) in Amsterdam.
Panayotis Glavinis
Prof. Dr Panayotis Glavinis is an associate professor of international economic law and vice-dean of the Faculty of Law at Aristotle University of
Thessaloniki. He teaches international trade law, international investment
law and energy law. He is the director of the MSc in Law and Engineering
for Energy jointly organized by the Faculty of Law and the Polytechnical
School of Aristotle University. He is attorney-at-law in Greece, arbitrator
and mediator, as well as a member of the ICC Commission on Arbitration
and ADR.
Gordana Ilić-Popov
Gordana Ilić-Popov is a full professor of tax law and international tax treaty law at the Faculty of Law of the University of Belgrade, Serbia. She is a
member of the International Institute of Public Finance (IIPF), International Fiscal Association (IFA) and the European Association of Tax Law Professors (EATLP), as well as of the national non-government organizations:
Serbian Fiscal Society (member of its Management Board), Association of
Jurists of Serbia, Association of Business Lawyers of Serbia and Serbian
Association of the Economic Analysis of Law. She was a legal team coordinator of the Policy and Legal Advice Center, European Agency for Restructuring, member of the investment country team for the FR Yugoslavia
within the OECD and Director of the Centre for the European Law at the
Institute for Law and Social Sciences at the Faculty of Law, University of
Belgrade. Professor Ilić-Popov has been a member of the editorial board
of several domestic scientific journals, and is at present a member of the
editorial board of the Journal of Economics and Public Finance (USA).
She is author or co-author of 9 books and more than 200 articles on tax law,
EU tax law and public finance issues, published in international and local
scientific and professional journals and in collected papers.
554
List of Contributors
Marko Jovanović
Marko Jovanović is an assistant professor at the Faculty of Law of the University of Belgrade, Serbia, from which he also holds a PhD. His teaching
activities include lectures and tutorials in international trade law, arbitration law, foreign direct investment law and EU private international law.
Dr Jovanović is a member of the Serbian Association of Business Lawyers
and the Serbian Arbitration Association. In addition to his academic activities, he has acted as the secretary to arbitral tribunals and as arbitrator in
ad hoc arbitrations and arbitrations organized by the Foreign Trade Court
of Arbitration attached to the Serbian Chamber of Commerce. He is the
vice-president of the Serbian Domain Names Dispute Resolution Committee and the deputy chief legal advisor at the Ministry of Foreign Affairs of
the Republic of Serbia. His research focuses on foreign direct investments,
WTO law, the international sale of goods, alternative dispute resolution
and private international law aspects of business transactions.
Svetislav V. Kostić
Svetislav V. Kostić is a docent at the Faculty of Law of the University of
Belgrade, Serbia, where he teaches general tax law, international tax law
and EU tax law to both undergraduate and graduate students. He holds an
LLB, LLM and a PhD from the University of Belgrade Faculty of Law
and an LLM from the New York University School of Law. In addition to
his academic activities, Dr Kostić is a director of Deloitte Tax and Legal
Services in Serbia and a treasurer of the Serbian IFA Branch. He is member of the practice counsel of the ITP at the New York University School
of Law and has published approximately 40 articles in both Serbian and
international publications.
Georgios Matsos
Dr Georgios Matsos lectures on domestic and international tax law at the
Aristotle University of Thessaloniki and at the International Hellenic University. He is also head of Matsos & Associates Law Office. He is author
of many publications on tax law, accounting law and on public finance and
has been invited to speak at many international and domestic conferences.
Martha O’Brien
Martha O’Brien is a professor of law at the Faculty of Law, University of
Victoria, Canada. She holds an LLM in Law of the European Union from
the Université libre de Bruxelles (1992). She practised Canadian and international tax law in Vancouver with leading Canadian national firms from 1992
to 2000. She has published widely on taxation, investment and trade and EU
law subjects in Canadian and European books and journals. Of particular
555
List of Contributors
relevance are the following: “Direct taxation, tax treaties and international
investment agreements: Mixed objectives, mixed results”, (with Kim Brooks,
Schulich School of Law, Dalhousie University) in De Mestral and Levesque
(eds.) Improving International Investment Agreements: Negotiations, Substantive Obligations and Dispute Resolution (Routledge, New York, 2012).
Annet Wanyana Oguttu
Annet Wanyana Oguttu is a professor of tax law at the University of South
Africa. She holds a doctorate in tax law, a master’s in tax law, an LLB degree, HDip International Tax Law and a diploma in legal practice. She has
published many articles on international tax law topics in internationally
accredited journals and is a rated researcher under South Africa’s National
Research Foundation. She authored the book International Tax Law: Offshore Tax Avoidance in South Africa (Juta, 2015) and is a co-author of Tax
Law: An Introduction (Juta, 2013). In 2014, the President of South Africa
appointed her as one of the Commissioners of the South African Law Reform Commission. In 2013, South Africa’s Minister of Finance appointed
her as a member of the Davis Tax Committee to assess South Africa’s tax
policy framework – she chairs the BEPS Subcommittee. In 2012, the UN/
DESA enlisted her as a member of the “Expert Group to Developed a UN
Course on Double Tax Treaties” and in 2015, the UNECA also enlisted
her to write the South African report on “Domestic Revenue Mobilisation in Africa”. She has been a visiting professor, lecturing international
tax law and tax treaties at the University of Pretoria, the University of Johannesburg, the African Tax Institute and the Academy of Public Finance
(Vienna University of Economic and Business in Austria). She is the Board
President of the South African Institute of Tax Practitioners, and a Board
member of the South African Fiscal Association and of the African Tax
Research Network – based at the African Tax Administration Forum.
Pasquale Pistone
Pasquale Pistone holds the Ad Personam Jean Monnet Chair in European
Tax Law and Policy at WU (Vienna University of Economics and Business) and is the Academic Chairman of IBFD, Amsterdam. He is also an
associate professor of tax law at the University of Salerno (Italy). He is
editor-in-chief of the World Tax Journal and a member of the editorial
board of Intertax.
Rodrigo Polanco Lazo
Rodrigo Polanco Lazo is an assistant professor of international economic
law at the Universidad de Chile and a senior researcher/lecturer, at the
World Trade Institute of the University of Bern. He holds a bachelor’s and
556
List of Contributors
a master of laws from Universidad de Chile School of Law, an LLM in international legal studies from New York University (NYU) School of Law,
and a PhD from the University of Bern, Graduate School of Economic
Globalisation and Integration, specializing in international investment law.
Michal Radvan
Michal Radvan is vice-dean for foreign and external affairs at the Faculty
of Law, Masaryk University, Czech Republic, and an associate professor
of financial law at the Department of Financial Law and Economics. He
specializes in tax law, especially local taxes and income taxation. He is
the author of 5 books and the co-author of almost 45 books. He has presented his scientific research in approximately 80 peer-reviewed articles
in prestigious journals and conference proceedings. He is a member of
the European Association of Tax Law Professors and the Information and
Organization Centre for the Research on the Public Finances and Tax Law
in the Countries of Central and Eastern Europe. E-mail: michal.radvan@
law.muni.cz.
Tovony Randriamanalina
Tovony Randriamanalina is qualified in both telecommunications engineering and in taxation. She worked as a project manager for a telecom
company in Madagascar (TELMA), and since 2012 has been a tax inspector at the Madagascar Revenue Authority (Direction Générale des Impôts).
Since 2014, she has been studying for a doctorate in law at the University
of Paris-Dauphine, focusing on the control of transfer pricing in developing
countries; her paper on this topic won the prize for the best student paper at
the inaugural conference of the Africa Tax Research Network, September
2015.
August Reinisch
August Reinisch is a professor of international and European law at the
University of Vienna, Austria. He has served as a legal expert and arbitrator in investment tribunals and is listed in the ICSID Panels of Conciliators
and of Arbitrators.
Pedro Ribeiro de Sousa
Pedro Ribeiro de Sousa is currently in-house tax lawyer at Banco BPI,
after 10 years in private practice at Ricardo da Palma Borges & Associados – Sociedade de Advogados, R.L. and at Deloitte & Associados, SROC,
S.A. He holds an LLM in international tax law from the Vienna University
of Economics and Business Administration (WU Wien) and an advanced
postgraduate degree in tax law from the Institute for Economic, Financial
557
List of Contributors
and Tax Law of the Lisbon University School of Law. He has published
several articles on Portuguese and international tax law.
Isabelle Richelle
Isabelle Richelle is a professor at the University of Liege where she is also
co-chairing the Tax Institute. She holds a PhD from the University of Brussels. Her research and practice focuses on European and international tax
law in relation to companies and individuals. She is regularly invited as
speaker at conferences and seminars and is the author of numerous publications. She is also a member of the ECJ Task Force of the Confédération
fiscale européenne, Of Counsel at the Brussels Bar and deputy judge.
Katharina Schiffmann
Katharina Schiffmann is a tax lawyer (associate in the tax department)
with GSK Luxembourg SA in Luxembourg.
Luis Eduardo Schoueri
Luís Eduardo Schoueri is a professor of tax law at the University of São
Paulo and partner at Lacaz Martins, Pereira Neto, Gurevich & Schoueri
Advogados. He is also vice-president of the Brazilian Tax Law Institute
and has been visiting professor at a number of foreign universities.
Anne Selbert
Anne Selbert is a tax lawyer (Senior Associate) with Bonn & Schmitt Avocats in Luxembourg.
Poonam Khaira Sidhu
Poonam Khaira Sidhu is a career civil servant from the Indian Revenue
Service, currently serving as Commissioner of Income Tax, and Member
of the Dispute Resolution Panel. She holds an LLM from the University of
Michigan, Ann Arbor, and has trained at Maxwell School of Public Policy
at the University of Syracuse. She had a sabbatical attachment with the
UK IRS in 1996-97 and has served as Director of International Taxation,
managing a cross-functional team responsible for auditing cases in crossborder transactions, advocated cases before the Tax Tribunal and Authority
for Advanced Rulings, and assisted the Indian Competent Authority on
the resolution of cases under the MAP. Her academic articles have been
published in the Bulletin for International Taxation, the International Tax
Review and the Economic Times.
558
List of Contributors
Daniël Smit
Daniël Smit is a professor in taxation at the Fiscal Institute Tilburg, Tilburg
University. He is the author of more than 100 national and international
publications in the field of European and international tax law. In June
2012, his PhD thesis was awarded the prestigious European Academic Tax
Thesis Award 2012. Furthermore, he has appeared as a speaker at various
national and international seminars and conferences and as a guest lecturer
at various universities in the Netherlands and abroad. In addition, Daniël
Smit has been employed at EY since 2002, and is currently part of the EU
Tax Services team in Amsterdam.
Samira Sulejmanovic
Samira Sulejmanovic has headed the Unit for Bilateral Trade Relations in
the Ministry of Foreign Trade and Economic Relations of Bosnia and Herzegovina since 2010. Her responsibilities cover overall bilateral trade and
economic relations of the country, including negotiation and implementation of investment protection treaties, preferential trade agreements and
economic cooperation agreements. She has published a number of professional articles related to the most recent developments in investment and
trade policies in the world, reflecting the position of Bosnia and Herzegovina, co-authored studies/commentaries, and delivered lectures to postgraduate students on trade negotiations from the perspective of Bosnia and
Herzegovina. She graduated in economics from the School of Economics
and Business, University of Sarajevo.
Martin Švec
Martin Švec is a PhD candidate at the Masaryk University, Faculty of Law,
Czech Republic. His dissertation Dimensions of International and European Energy Law: State Sovereignty in Ensuring Energy Security focuses
on the limits of energy security and international law instruments at the
disposal of states. His expertise covers international energy law, investment law, international environmental law, and international humanitarian
law. His research also focuses on the relationship between EU law and
investment treaty law. In 2015, Martin Švec worked as a legal intern at the
Energy Charter Secretariat in Brussels.
Karolina Tetłak
Dr Karolina Tetłak is an assistant professor in tax law at Warsaw University,
Poland and academic associate of the Centre for International Sports Law
at Staffordshire University, UK and Thompson Rivers University, Canada.
An LLM graduate of Harvard Law School, she is an expert in sports fiscal
law, the taxation of athletes and tax treatment of sports events. Her PhD
559
List of Contributors
thesis on the taxation of international sportspersons has been published
in IBFD’s Doctoral Series. She teaches international tax law at numerous
universities worldwide and has broad practical expertise on income tax,
international taxation, VAT and tax procedure. She has been involved as
an expert in tax-related arbitration proceedings under bilateral investment
treaties signed by Poland.
Edoardo Traversa
Edoardo Traversa is a professor at the Université Catholique de Louvain
(UCL) and a visiting professor at the KU Leuven and WU Vienna, where
he spent the academic year 2013-2014. He has taught at other European
universities (Münster, Valencia and Bologna). His research areas mainly
cover constitutional tax law, fiscal and financial federalism, the interaction
between taxation and public policies, the development of European tax integration, and international aspects of the taxation of companies and individuals. He has also been consulted on taxation and public finance issues
by public authorities at the EU, Belgian federal and regional level. Further,
he is a lawyer Of Counsel at the Brussels Bar (Liedekerke).
Danil V. Vinnitskiy
Prof. Dr Danil V. Vinnitskiy is head of the department of tax and financial
law, Ural State Law University; head of the Research Centre for Comparative and International Tax Law (Ekaterinburg, Russia); and member of the
Academic Committee of the European Association of Tax Law Professors
(EATLP) and of the Presidium of the International Association of Financial Law (which unites scholars from CIS countries). He has authored more
than 200 publications, including eleven monographs and seven textbooks
on tax and financial law (including those prepared with co-authors). He is
also the editor of collections of articles on topical issues of financial and
tax law, general editor of the Russian Yearbook of International Tax Law,
member of the scientific councils of a number of the Russian Federation
state bodies, and has acted as an expert for the RF Constitutional Court.
Jeff Waincymer
Jeff Waincymer is a professor at the Faculty of Law, Monash University. He
is also an arbitrator and mediator, practicing solely in the fields of arbitration, international trade and investment, customs law and trade remedies
and mediation. Jeff Waincymer has been an Australian Government Nominee as a panelist for the WTO and ICSID and is on the HKIAC, SIAC,
KLRCA and ICDR arbitration panels. He is the author of Procedure and
Evidence in International Arbitration (Kluwer); WTO Litigation: Procedural Aspects of Formal Dispute Settlement (Cameron May); and Austra560
List of Contributors
lian Income Tax: Principles and Policy (2nd edn., Butterworths); as well
as a joint author of A Guide to the New UNCITRAL Arbitration Rules
(Cambridge University Press), A Practical Guide to International Commercial Arbitration (Oceana) and International Trade Law: Commentary
and Materials (2nd edn., Law Book Company).
Felipe Yañez V.
Felipe Yañez V. graduated from the Universidad de Chile and holds a master in tax law from the Universität zu Köln in Germany. He is a lecturer in
tax law and in the Master in Enterprise Law Programme at the Universidad
de los Andes, Santiago, Chile, a lecturer in the Master and Management
Programme at the Universidad Católica de Valparaíso and in the Tax Programme at the Faculty of Economics and Business, Universidad de Chile.
He is Member of the Board of the International Fiscal Association (IFA)
Chilean Branch, and has been an attorney since 2000, and tax partner at
Mazars.
Zhu Yansheng
Zhu Yansheng is a professor and vice dean at the Law School, Xiamen
University. He works in the field of international economic law, tax law
and commercial law (specializing in international tax law) and teaches tax
law, international tax law, international economic law, company law, contract law and trust law. He is the author of the Principle of Permanent Establishment in Tax Treaties (Law Press, China, 2006) and Company Law
(5th edition, Xiamen University Press, China, 2015), and the co-author and
co-editor of International Tax Law (a textbook for undergraduate students,
High Education Press, China, 2008). Currently, he is vice-chairman of the
Society of Fiscal Law in Fujian Province, and a member of the Standing Council of China’s Society of Fiscal Law. He was a visiting scholar at
Boston University Law School in the academic year 2003-2004, a visiting
professor at the National Taiwan University Law School from April to June
in 2009, and a Fulbright Scholar hosted at Georgetown University Law
Center in the academic year 2011-2012. He received his LLB, LLM, and
JSD from Xiamen University.
561
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