The Multilateral Instrument in Africa: A Strategic Analysis

Abstract

The Multilateral Instrument (MLI) was launched under Action 15 of the Base Erosion and Profit Shifting (BEPS) Project in November 2016 under the joint collaboration of the Organization for Economic Cooperation and Development (OECD) and the G20 in order to update existing bilateral tax treaty provisions to counter BEPS more effectively. Despite the benefits that the MLI presents for updating the African treaty network, the analysis in this contribution reveals that its provisions addressing certain high priority BEPS issues such as the artifical avoidance of permanent establishment (PE) status under Action 7 and even the minimum standard provisions under Action 14 for improving the mutual agreement procedure (MAP) were implemented rather poorly in less than 40% of the eligible African treaties. The exception to this are the minimum standard provisions under Action 6 that modified more than 75% of the treaties to counter treaty shopping. This paper elaborates on the resulting policy implications and offers a number of normative recommendations for maximizing the benefits of the MLI implementation in the African context which could also be relevant in light of the proposed Pillar Two reform. Multilateral Instrument (MLI) implementation, BEPS in Africa, policy implications, developing countries, capacity building, Pillar Two, STTR