The expanding universe of international tax disputes: a principled analysis of the OECD international tax dispute settlement proposals

Abstract

ABSTRACT This article analyzes the dispute settlement proposals contained in the October 2020 OECD Pillar One Blueprint. We concentrate on the actual proposals found in the Blueprint and analyse them against critical issues that are relevant to the development of public international law dispute settlement processes more broadly, fostering a better contextualization of the analysis. Invariable, these tax disputes arise from measures taken by governments, or responses to Base Erosion and Profit Shifting (BEPS) measures by companies. In some cases, the government measures reflect deep concerns over the lack of tax revenues from foreign investors. This focus on government action has been married to corporate-centred concepts of tax certainty, leading to a ‘tax certainty’ design in the Blueprint that risks distorting dispute settlement in international tax for many years to come. Fortunately, the proposals leave many issues to be resolved during the drafting process set to take place over 2021–2022. This means that the international tax law regime, especially in this moment of major reform, has an opportunity to open its thinking, and its integration, into the broader corpus of public international law, as trade and investment law have done before. A failure to do so risks putting its future credibility at risk.