IBFD, Your Portal to Cross-Border Tax Expertise
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 signicant 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 elds
of law.
The title is volume 8 in the WU Institute for Austrian and International Tax Law - Tax Law and
Policy Series.
Title: The Impact of Bilateral Investment Treaties on Taxation
Editors: Michael Lang et al.
Date of publication: December 2017
ISBN: 978-90-8722-431-8 (print/online), 978-90-8722-432-5 (eBook)
Type of publication: Book
Number of pages: 590
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The Impact of Bilateral Investment
Treaties on Taxation
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ISBN 978-90-8722- 431-8 (print)
ISBN 978-90-8722- 432-5 (eBook)
ISSN 2451-8360
NUR 826
v
Table of Contents
Preface xxiii
Chapter 1: General Report 1
Pasquale Pistone
1.0. Introduction 1
1.1. General framework 2
1.1.1. Policy rationale of bilateral investment and tax treaties 2
1.1.2. A common dilemma: Concluding bilateral treaties
or doing without them? 4
1.1.3. Policy trends, models and developments in BITs
and tax treaties 8
1.2. Relationship to other tax and non-tax treaties 13
1.2.1. Existence of conflicts and order of priority 13
1.2.2. The relationship of BITs to tax treaties 13
1.2.3. The relationship of BITs to non-tax treaties 16
1.3. Coverage of taxes and carve-out clauses 17
1.3.1. The meaning of taxation in tax carve-out clauses 17
1.3.2. The types of tax carve-out clauses 20
1.3.3. Impact of umbrella clauses on the coverage of BITs
and their implication for tax matters 22
1.4. Fair and equitable treatment and transparency 23
1.4.1. The interpretation and application of FET in tax
matters and constitutional principles 23
1.4.2. The protection of FET and access to justice in tax
matters 24
1.4.3. Common points and differences with the non-
discrimination principle 25
1.4.4. Transparency 25
1.5. National treatment and most-favoured-nation
treatment 26
1.5.1. Their common policy rationale 26
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1.5.2. Their application in taxation matters in the absence
of a tax carve-out 27
1.5.3. REIO clauses 29
1.6. Taxation as expropriation 30
1.6.1. Expropriation and its application to taxation matters 30
1.6.2. Tax expropriation and the Yukos case 32
1.6.3. Expropriation and confiscatory taxation 36
1.7. Taxation and free transfer of capital 38
1.7.1. The application of provisions on free transfer of
capital to taxation 38
1.7.2. Protection of returns from investment under BITs
and EU law 39
1.8. Dispute settlement and awards 40
1.8.1. Types of arbitration and their institutional
framework in BITs 40
1.8.2. Arbitrating tax disputes under the different legal
frameworks of bilateral investment and tax treaties 41
Chapter 2: Australia 45
Jeff Waincymer
2.1. General framework – Policy considerations 45
2.1.1. Introduction 45
2.1.2. Australia’s tax and investment treaty policy 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
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Chapter 3: Austria 71
Lars Gläser and August Reinisch
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
Chapter 4: Belgium 99
Edoardo Traversa and Isabelle Richelle
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
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Table of Contents
Chapter 5: Bosnia and Herzegovina 123
Samira Sulejmanovic and Azra Becirovic
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
Chapter 6: Brazil 149
Luís Eduardo Schoueri and Ricardo André
Galendi Júnior
6.1. General framework 149
6.1.1. General overview of Brazilian DTCs and the non-
ratified BITs 150
6.1.2. Reasons for not entering into BITs 152
6.1.2.1. Economic argument 152
6.1.2.2. Incompatibilities with constitutional and other
domestic provisions 154
6.1.3. Brazil as a capital exporter 157
6.1.4. Brazil’s New Investment Treaty Model: The CFIA 159
6.2. Relation to other tax and non-tax treaties 163
6.2.1. Investment treaty shopping 163
6.2.2. Conflict between a DTC and an investment treaty 165
6.3. Coverage of taxes and carve-out clause 165
6.4. Fair and equitable treatment and transparency 166
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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. Dispute settlement and awards 171
6.8.1. Investor-state arbitration 171
6.8.2. Arbitration in tax issues 174
6.8.3. Concluding remarks 175
Chapter 7: Canada 177
Martha O’Brien
7.1. General framework 177
7.1.1. Three generations of BITs 177
7.1.2. Canada’s double tax treaties 178
7.1.3. General standards and principles 180
7.1.4. Pre-establishment control of investment in Canada 181
7.2. Relation to other tax and non-tax treaties 183
7.3. Coverage of taxes and carve-out clauses 186
7.3.1. Tax carve-outs in Canada’s BITs 186
7.3.2. The NAFTA tax carve-out 187
7.3.3. The CETA tax carve-out 188
7.4. Fair and equitable treatment and transparency 191
7.4.1. Substantive standards 191
7.4.2. Tax administration and FET 194
7.5. NT and MFN 194
7.5.1. General 194
7.5.2. MFN in Canada’s DTTs and BITs 195
7.6. Taxation as expropriation 195
7.7. Taxation and free transfer of capital 197
7.7.1. General obligations 197
7.7.2. Free movement of capital, CETA and tax provisions 197
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7.8. Dispute settlement and awards 199
7.8.1. General 199
7.8.2. Public debate on investment agreements 201
7.8.3. Denial of benefits under BITs and DTTs 202
Chapter 8: Chile 203
Rodrigo Polanco Lazo and Felipe Yáñez
8.1. General framework 203
8.1.1. Chilean policy on double taxation treaties and
international investment agreements 203
8.1.2. Is there a Chilean model for IIAs or DTTs? 204
8.1.3. The role of investment contracts in Chile 205
8.2. Relationship to other tax and non-tax treaties 207
8.2.1. Are there overlaps between IIAs and DTTs? 207
8.2.2. Are there conflicts between IIAs and DTTs
concluded by Chile? 207
8.2.2.1. Treaty provisions dealing with cases of conflict
between IIAs and DTTs 208
8.2.2.2. Conflicts between IIAs and DTTs in the absence
of a dispute settlement provision 209
8.2.3. Conflicts between IIAs and other treaties or
agreements containing tax clauses 210
8.2.4. Conflicts between DTTs and other international
treaties protecting foreign investment 210
8.3. Coverage of taxes and carve-out clauses 210
8.3.1. Carve-outs 211
8.3.1.1. Domestic tax autonomy 211
8.3.1.2. International tax autonomy 212
8.3.2. Umbrella clauses 212
8.4. Fair and equitable treatment and transparency 213
8.4.1. Impact of fair and equitable treatment provisions
on Chilean tax rules or administrative practice:
Relevant case law 213
8.4.2. Impact of the constitutional principle of equality
on the interpretation of FET clauses 215
8.4.3. Governmental practices or procedures
contravening the FET principle 216
8.4.4. Transparency obligations in Chilean BITs and FTAs 217
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8.5. National treatment and most-favoured-nation
treatment 218
8.5.1. Non-discrimination clauses in DTTs 218
8.5.2. Case law on NT and MFN clauses of Chilean IIAs 221
8.5.3. Non-discrimination clauses in Chilean DTTs vs.
Chilean IIAs 222
8.5.4. MFN clauses in Chilean IIAs vs. MFN rules in
WTO rules or FTAs 222
8.5.5. Comparing MFN clauses in Chilean DTTs with
Chilean IIAs 224
8.5.6. Selective application of MFN clauses in Chilean
IIAs 224
8.5.7. Tax-related cases or awards related to NT or MFN
clauses in Chilean IIAs 224
8.5.8. Regional economic integration organization
(REIO) clauses in Chilean BITs 225
8.6. Taxation as expropriation 225
8.6.1. Expropriation provisions in Chilean IIAs 225
8.6.2. Case law related to expropriation 226
8.6.3. Legitimacy of taxes vs. “acquired rights” of
taxpayers 226
8.6.4. Jurisprudence on confiscatory taxes 227
8.7. Taxation and free transfer of capital 227
8.7.1. Capital transfer provisions in Chilean IIAs 227
8.7.2. Effect of capital transfer clauses on tax provisions 228
8.8. Dispute settlement and awards 229
8.8.1. Investor-state arbitration 229
8.8.2. Relevant cases and political debate 229
8.8.3. Dispute resolution provisions in IIAs and DTTs 230
8.8.4. Impact of BEPS on ISDS 230
Chapter 9: China 233
Yansheng Zhu
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
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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
Chapter 10: Czech Republic 257
Michal Radvan and Martin Švec
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
Chapter 11: France 283
Thomas Dubut and Tovony Randriamanalina
11.1. General framework 283
11.1.1. The French BIT network 283
11.1.2. The French free trade agreements network 287
11.1.3. The French BIT model 288
11.1.4. Investment contracts and investment authorizations 289
11.1.5. BITs and the BEPS Project 290
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11.2. Relation to other tax and non-tax treaties 290
11.2.1. Relation to DTTs concluded by France 290
11.2.2. Relation to other international agreements
concluded by (or binding on) France 292
11.3. Coverage of taxes and carve-out clause 292
11.4. Fair and equitable treatment (FET) and transparency 294
11.4.1. FET and taxation 294
11.4.2. Judicial review of investment agreements with
regard to FET 296
11.4.3. BITs and transparency 297
11.5. NT and MFN treatment 297
11.5.1. Restrictions to the scope of NT and MFN clauses
in French BITs 297
11.5.2. Taxation and NT and MFN clauses in French BITs 299
11.6. Taxation as expropriation 299
11.7. Taxation and free transfer of capital 300
11.7.1. General remarks 300
11.7.2. BIT free transfer provision and exit tax 301
11.8. Dispute settlement and awards 301
11.8.1. Investor-state arbitration in French BITs 302
11.8.2. Arbitration between the contracting states in
French BITs 304
11.8.3. Arbitration clauses in French DTTs 304
11.8.4. Treaty shopping 306
11.9. Conclusion 307
Chapter 12: Germany 309
Arno E. Gildemeister
12.1. General framework 309
12.1.1. Treaty practice 309
12.1.2. Tax stabilization guarantees and the Vattenfall case 311
12.2. Relationship between investment and tax treaties 312
12.3. Coverage of taxes and carve-out clauses 316
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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
Chapter 13: Greece 327
Panayotis Glavinis and Georgios Matsos
13.1. General framework 327
13.1.1. Greek investment and tax treaty policy 327
13.1.2. Greek BIT Model 328
13.1.3. DTTs: Compliance with the OECD Model Tax
Convention 329
13.1.4. Investment authorizations 330
13.1.5. Greece’s national investment code (Law Decree
2687/1953 331
13.1.6. Law Decree 3894/2010 on strategic investments 332
13.1.7. Investment agreements 333
13.1.8. Influence of the BEPS Project 337
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. National treatment and most-favoured-nation
treatment 342
13.5.1. Interaction with tax law 342
13.5.2. Compatibility with EU treaties and EU law 345
13.6. Taxation as expropriation 345
13.7. Taxation and free transfer of capital 348
13.8. Dispute settlement and awards 350
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Chapter 14: India 353
Poonam Khaira Sidhu
14.1. General framework: Policy considerations 353
14.1.1. Treaty-making powers under the Constitution of India 353
14.1.2. Indian bilateral or multilateral free trade agreements 354
14.1.3. Indian bilateral investment treaties 354
14.1.4. Review of the Model BIPA and the new Model BIT 355
14.1.5. Other IIAs and investment-related instruments (IRIs) 355
14.2. Relation to other tax and non-tax treaties 356
14.2.1. Indian double tax treaties 357
14.2.2. Disputes under Indian BITs 358
14.3. Coverage of taxes and carve-out clause 358
14.3.1. Investment contracts, concessions and tax
stabilization clauses 359
14.3.2. Umbrella clauses 360
14.3.3. Increasing number of tax disputes 361
14.4. Fair and equitable treatment and transparency 363
14.4.1. Transparency clauses in the Model BIT 364
14.5. National treatment and most-favoured-nation
treatment 365
14.5.1. 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. Dispute settlement and awards 369
14.8.1. Conclusion 371
14.8.2. Epilogue 373
Chapter 15: Luxembourg 375
Anne Selbert and Katharina Schiffmann
15.1. General framework 375
15.1.1. Double tax treaties 375
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15.1.2. Bilateral investment treaties 377
15.1.3. Bilateral or multilateral free trade agreements 378
15.2. Relationship to other tax and non-tax treaties 379
15.2.1. Relationship to tax treaties 379
15.2.2. Relationship to other international treaties 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. Taxation and free transfer of capital 385
15.7.1. Belgium-Luxembourg Model BIT 385
15.7.2. Existing BITs 385
15.8. Dispute settlement and awards 386
15.8.1. Dispute resolution under the Belgium-Luxembourg
Model BIT 386
15.8.2. Disputes and transparency 387
15.8.3. DTTs and arbitration 388
15.8.4. BEPS Action 14 Plan 388
15.8.5. BEPS Action 6 389
15.8.6. EU Arbitration Convention 389
Chapter 16: The Netherlands 391
Daniël Smit
16.1. General framework 391
16.1.1. Introduction 391
16.1.2. The Dutch Model BIT 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
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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. Dispute settlement and awards 405
16.8.1. Dispute settlement awards under Dutch BITs 405
16.8.2. Recent trends in dispute settlement: A growing
number of dispute settlements and growing
scepticism about the current dispute settlement
system 406
16.8.3. Treaty shopping: Anti-BEPS legislation through
the backdoor? 409
Chapter 17: Poland 415
Karolina Tetłak
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
Chapter 18: Portugal 441
Tiago Duarte and Pedro Ribeiro de Sousa
18.1. General framework 441
18.2. Relationship to other tax and non-tax treaties 445
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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 461
Danil V. Vinnitskiy
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
Chapter 20: Serbia 483
Svetislav V. Kostić, Marko Jovanović and
Gordana Ilić-Popov
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
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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 505
Annet Wanyana Oguttu and Rafia de Gama
21.1. General framework 505
21.1.1. How DTTs become part of domestic law 506
21.1.1.1. Use of Model DTTs 506
21.1.1.2. Criteria for selecting treaty partners 507
21.1.2. How BITs become part of domestic law 508
21.1.2.1. Use of Model BITs 509
21.1.2.2. Criteria for selecting BIT contracting states 510
21.2. Relationship to other tax and non-tax treaties 511
21.3. Coverage of taxes and carve-out clauses 513
21.4. Fair and equitable treatment and transparency 514
21.4.1. The impact of the principle of equality on
the interpretation of FET clauses 514
21.4.2. Practices or procedures by tax authorities or tax
courts contrary to FET as well as tax laws, and
unsatisfactory rules for due process 515
21.4.3. Transparency in FET provisions in the RSA’s BITs 516
21.5. National treatment and most-favoured-nation
treatment 516
21.5.1. Comparison of non-discrimination clauses in DTTs
and NT and MFN clauses in BITs 518
21.5.2. Similarities between MFN clauses in BITs and
MFN rules in WTO rules or free trade agreements 518
21.5.3. Comparison of MFN clauses in RSA’s DTTs with
those in BITs 519
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21.6. Taxation as expropriation 520
21.6.1. Provisions on expropriation in BITs 520
21.6.2. Circumstances under which taxation may amount
to expropriation under a BIT and the criteria to
distinguish indirect expropriation from legitimate
regulation 520
21.6.3. The legitimacy of taxes: Are taxes considered
punitive or “normal governmental conduct”? 524
21.7. Taxation and free transfer of capital 524
21.7.1. Does any withholding tax on dividends, interest
or profits in RSA come under the scope of capital
transfer provisions? 524
21.8. Dispute resolution and awards 525
21.8.1. Legal barriers to arbitration clauses in BITs 528
21.8.2. The appropriateness of investor-state arbitration
as a dispute settlement mechanism for arbitration
of tax disputes – BEPS Action 14 528
Chapter 22: United States 531
Yariv Brauner
22.1. General framework 531
22.1.1. Introduction 531
22.1.2. Current situation 532
22.1.3. Negotiation policies 533
22.1.4. Models 534
22.1.5. Investment contracts and authorizations 536
22.1.6. BEPS 536
22.2. Relationship to other tax and non-tax treaties 536
22.2.1. Conflicts between BITs and DTTs 536
22.2.2. Conflicts with other treaties 537
22.3. Coverage of taxes and carve-out clause 538
22.4. Fair and equitable treatment and transparency 540
22.4.1. General 540
22.4.2. Constitutional law aspects 541
22.4.3. Due process 541
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22.4.4. FET clauses and tax non-discrimination 541
22.4.5. Transparency obligations 541
22.5. National treatment and most-favoured-nation
treatment 542
22.6. Taxation as expropriation 543
22.7. Taxation and free transfer of capital 544
22.7.1. General 544
22.7.2. Withholding taxes 544
22.7.3. Exit provisions 544
22.8. Dispute settlement and awards 544
22.8.1. Investor-state arbitration 544
22.8.2. Disputes 545
22.8.3. Arbitration in DTTs 545
22.8.4. Investor-state arbitration and the mutual agreement
procedure in DTTs 549
22.8.5. BEPS 549
List of Contributors 551
Preface
xxiii
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 ques-
tions 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 interdiscipli-
nary research methodology that has already characterized various publica-
tions 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 provid-
ing 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-pro-
voking 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 Ville-
neuve, 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 ap-
proach 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.
xxiv
Preface
We trust that our readers will appreciate our efforts and find this book use-
ful 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
1
Chapter 1
General Report
Pasquale Pistone
1.0. Introduction
The bilateral investment treaty (BIT) and double tax treaty (DTT) net-
works are not only among the most extensive treaty networks in existence,
with roughly 2,300 BITs
1
and 3,000 DTTs
2
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 eco-
nomic growth.
In the new post-economic crisis and post-BEPS environment, taxation is
becoming increasingly important both in the public opinion and to coun-
tries 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 be-
ing 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 Inter-
national Tax Law invited academics, practitioners and government officials
involved in the negotiation of these treaties to the 2015 Summer Confer-
ence in Rust. The conference was based on a series of short input state-
ments prepared by national reporters from 34
3
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-
Sample Content
2
Chapter 1 - General Report
a questionnaire devised by the Institute’s staff. The questionnaire and con-
ference 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 con-
ference attendees.
Following the conference, where high-level discussions on the finer points
of law were held, the national reporters updated their reports by incorporat-
ing 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 re-
ports, 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 de-
scribed briefly as follows.
ico, the Netherlands, Peru, Poland, Portugal, the Republic of Serbia, Romania, Rus-
sia, 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.
3
General framework
The main policy rationale for concluding a BIT is to provide a legal frame-
work 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 expro-
priation 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 frame-
work for disputes between the state and the investor, taking into consid-
eration that governments can change legislation, and provide for solutions
based on authentic interpretation that in fact override the decisions of na-
tional 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 con-
tracting 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 deter-
mined by domestic law, the mere fact of setting up a Netherlands company gives en-
titlement 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 trea-
ties – 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 require-
ment 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 Taxa-
tion 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.
4
Chapter 1 - General Report
courts of one of the contracting states or addressed by the two contract-
ing 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 trea-
ties 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 regulat-
ing conflicts between states and the latter to be instruments of private inter-
national 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 arbitra-
tion. 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 set-
tlement mechanisms.
1.1.2. A common dilemma: Concluding bilateral treaties or
doing without them?
Bilateral investment and tax treaties are prominent features of the interna-
tional treaty policies of most countries.
Germany has been a policy forerunner in both bilateral investment and tax
treaties.
9
In general, some European countries
10
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.
5
General framework
sometimes have different features in bilateral relations with developing
countries
14
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 1959
16
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) ar-
bitration 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 taxa-
tion, which was essentially driven by bilateralism steered by model con-
ventions drafted under the auspices of the League of Nations, the Organi-
sation for European Economic Co-operation (OEEC) and the Organisation
for Economic Co-operation and Development (OECD).
Furthermore, since the late 18th century
17
until after the end of the Sec-
ond World War,
18
developed countries have concluded friendship and com-
14. 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. Randriamana-
lina, 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-
6
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 inten-
sity 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 bilat-
eral tax treaties.
22
From their early days, BITs have operated as legal instruments for capital-
exporting countries to achieve a stable legal framework in respect of out-
bound investment and to secure the transfer of returns from such invest-
ment.
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 com-
merce treaties, which are included in BITs.
21. As indicated by the IBFD International Tax Glossary on the basis of the 1923 re-
port 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 grenzüber-
schreitenden Ertragssteuerrecht (Linde Verlag, Vienna, 2005), p. 193, rightly indi-
cates, numerous tax treaties include MFN clauses. A comprehensive and updated sur-
vey of tax treaties with MFN clauses is currently being conducted by IBFD.
7
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 develop-
ing countries when it concluded its first BITs, possibly due to fear that
legal instability in such countries could pose immediate threats to Ger-
man 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 at-
tract 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 time
27
and international obligations con-
tracted 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 ele-
23. See T. Dubut and T. Randriamanalina, France, sec. 11.1.1.
24. M. Sornarajah, The International Law on Foreign Investment (Cambridge Uni-
versity Press, 2010), p. 229, questions this perception in the absence of empirical evi-
dence that confirms it, but more recent econometrical studies conducted in the Neth-
erlands 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 in-
vest 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 Ger-
man 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 Com-
pany v. The Government of Mongolia, UNCITRAL, Award on Jurisdiction and Liabil-
ity of 28 Apr. 2011, para. 302.
8
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 impor-
tant 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 ad-
ministrative practice that could lead to expropriation of the foreign invest-
ment.
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 protect-
ing 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 consist-
ency should therefore focus on the former, rather than the latter group of
countries.
We shall now address the criteria for selecting treaty partners, the conver-
gence among bilateral treaties, including the role of model conventions,
and provide some additional information on recent and ongoing develop-
ments, 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 geo-
graphical areas that are more receptive to inbound investment and gradu-
ally 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 car-
ries 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. Z hu,
China, sec. 9.1.
551
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 Taxa-
tion (DIBT) at WU (Vienna University of Economics and Business).
Jeffrey Owens
Jeffrey Owens is Director of the WU Global Tax Policy Center of the In-
stitute 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 Busi-
ness). He is also an associate professor of tax law at the University of Saler-
no, 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 Bruck-
haus Deringer.
552
List of Contributors
Assistant Editors
Ege Berber Villeneuve is currently a PhD candidate in the Doctoral Pro-
gram 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 In-
ternational 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 mas-
ter’s degree from the same university.
Authors
Azra Becirovic
Azra Becirovic is senior advisor for fiscal affairs at the Ministry of Fi-
nance and Treasury of Bosnia and Herzegovina and a PhD candidate in
economics at Sarajevo School of Science and Technology, Bosnia and Her-
zegovina, 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 Br auner
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 teach-
ing 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. Avi-
Yonah 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 inter-
est in international investment law and international aviation law.
553
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 Uni-
versity 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 chair-
man of the Investment Arbitration Council of the Portuguese Arbitration As-
sociation 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 ar-
ticles 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 Univer-
sity 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 (Paris-
Est), 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 in-
dependent 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, Arbi-
tration and Litigation (2012-2014), as Rechtsanwalt/Avocat at Shearman
& Sterling LLP, Paris, International Arbitration (2009-2012) and as Re-
chtsanwalt 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 publica-
tions 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
554
List of Contributors
and an associate at Lacaz Martins, Pereira Neto, Gurevich & Schoueri Ad-
vogados.
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 litiga-
tion, 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 eco-
nomic 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 trea-
ty law at the Faculty of Law of the University of Belgrade, Serbia. She is a
member of the International Institute of Public Finance (IIPF), Internation-
al Fiscal Association (IFA) and the European Association of Tax Law Pro-
fessors (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 co-
ordinator of the Policy and Legal Advice Center, European Agency for Re-
structuring, 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.
555
List of Contributors
Marko Jovanović
Marko Jovanović is an assistant professor at the Faculty of Law of the Uni-
versity of Belgrade, Serbia, from which he also holds a PhD. His teaching
activities include lectures and tutorials in international trade law, arbitra-
tion 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 activi-
ties, 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 Commit-
tee 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 mem-
ber 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 Uni-
versity. 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 interna-
tional 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
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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, Sub-
stantive 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 de-
gree, 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: Off-
shore 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 Re-
form 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 Mobilisa-
tion in Africa”. She has been a visiting professor, lecturing international
tax law and tax treaties at the University of Pretoria, the University of Jo-
hannesburg, 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 Busi-
ness) 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
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List of Contributors
a master of laws from Universidad de Chile School of Law, an LLM in in-
ternational 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 pre-
sented 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 engi-
neering and in taxation. She worked as a project manager for a telecom
company in Madagascar (TELMA), and since 2012 has been a tax inspec-
tor 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 arbitra-
tor 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 & Associa-
dos – 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
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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 Brus-
sels. 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 publi-
cations. 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 Avo-
cats 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 cross-
border 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.
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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 Her-
zegovina since 2010. Her responsibilities cover overall bilateral trade and
economic relations of the country, including negotiation and implementa-
tion of investment protection treaties, preferential trade agreements and
economic cooperation agreements. She has published a number of profes-
sional articles related to the most recent developments in investment and
trade policies in the world, reflecting the position of Bosnia and Herzego-
vina, co-authored studies/commentaries, and delivered lectures to post-
graduate 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 Euro-
pean 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, invest-
ment 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
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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 in-
tegration, and international aspects of the taxation of companies and indi-
viduals. 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 Compara-
tive 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 Finan-
cial 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 arbitra-
tion, international trade and investment, customs law and trade remedies
and mediation. Jeff Waincymer has been an Australian Government Nomi-
nee 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: Proce-
dural Aspects of Formal Dispute Settlement (Cameron May); and Austra-
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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 Com-
mercial 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 mas-
ter 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 Pro-
gramme 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, con-
tract law and trust law. He is the author of the Principle of Permanent Es-
tablishment 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 Stand-
ing 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.
IBFD, Your Portal to Cross-Border Tax Expertise
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