Document Type

Book Chapter

Publication Date


Source Publication

Lang, Michael et al. International Arbitration in Tax Matters. Amsterdam, The Netherlands: IBFD Publications, 2015.


Arbitration, even if it seems simply providing for the possibility of arbitration, is increasingly attracting attention as a possible means to discipline the resolution of otherwise potentially intractable international tax controversies concerning the allocation of taxing rights under tax treaties.While perceived, though not without reservation, to be a potential welcome addition to a typical mutual agreement procedure (MAP) patterned on article 25 (“the MAP article”) of the OECD Model Tax Convention on Income and Capital(“the OECD Model”) in the form of article 25(5), other provisions of article 25, notably its “interpretive” and “application,”and “legislative”,aspects and contemplated recourse to a “joint commission”reflect a long-standing awareness, even possibly a latent expectation, that objective interveners and alternative or supplementary means or other extensions of the MAP beyond the typical limits of a “specific case”may help the MAP to achieve its full potential. In fact, one author, in a thoughtful and wide-ranging analysis of arbitration in the tax context, has essentially presumed its usefulness but, in a fashion to which these comments are sensitive, has referred to “mandatory arbitration” as “a solution in search of a problem”.

These comments express a point of view as a contribution to the discussions framed by this book. They proceed on the assumption, for the most part, that an otherwise legally effective arbitration decision can be reached and that what remains is to give it fair effect in relation to states’ assessments of taxpayers under their laws. No assumptions are made about the specific features or peculiarities of particular states’ laws. Ultimately, of course these matter.