A Taxing Endeavour: Addressing the Tax Consequences of Investment Arbitration Awards

Abstract

The authors proceed from the theoretical rule that where a claimant establishes that the value of its award will be taxed in excess of what its profits would have been taxed absent the respondent state’s breach, it may be entitled to a ‘tax remedy’ in order to prevent under-compensation. They then analyse tribunal practice, with some interesting (and surprising) results. First, despite the taxation of awards often amounting to tens of millions of dollars, tribunals have devoted very little attention to this issue. Second, tribunals have tended to make a distinction between those potential award tax burdens imposed by the respondent state and those imposed by a third state. Whilst requests for tax remedies regarding tax liabilities to third states have been refused in all publicly available decisions, some tribunals have been sympathetic to requests for tax remedies regarding tax liabilities to the respondent state; although importantly, such awarded remedies have been non-monetary in nature. Finally, looking forward, the authors propose that tax remedies be categorized as ‘future losses’, a well-established concept. Mindful of the hurdles such arguments would need to overcome, including the requirements of reasonable certainty and proximate causation, the authors point to existing law and practice to provide a corresponding legal framework, in the hope of moving towards consistent and objective future practice on this point. Tax remedies, tax gross-up, taxes in investment arbitration, taxation of arbitral awards, future losses, speculative losses, proximate causation, reasonable certainty, burden of proof for establishing damages, two-tiered burden of proof for future losses