Inter-state arbitration in international tax disputes

Abstract

The proliferation of inter-state ADR mechanisms, such as joint tax vetoes and mutual agreement procedures, as well as investor-state tax-related arbitration, are the chief reasons for the decline of inter-state arbitration (or other forms of adjudication) in tax matters. The paper demonstrates that this is a new trend and a break from pre-WW II practice, but it is not satisfactory to stakeholders in all areas of commercial and investment activity. As a result, a limited number of tax disputes are subjected to inter-state arbitration. The following instruments typically serve as submission agreements, namely: bilateral investment treaties, bilateral tax treaties, multilateral regional economic cooperation (or free trade) agreements and pipeline treaties. The majority of disputes in the instruments analysed are submitted to ad hoc arbitration. Even so, the paper traces the role of other forums as arbitral tribunals in inter-state tax disputes, namely: the International Court of Justice and its predecessor, the Permanent Court of International Justice, the Court of Justice of the European Union and other Free Trade and Economic Union tribunals.