Treaty Issues Research Articles

Literature Review: Current Tax Treaty Issues, 50th Anniversary of the International Tax Group, G. Maisto (Editor), EC and International Tax Law Series Vol. 18, IBFD. 2020

Literature Review: <i>Current Tax Treaty Issues, 50th Anniversary of the International Tax Group</i>, G. Maisto (Editor), EC and International Tax Law Series Vol. 18, IBFD. 2020

The Interpretation of Tax Treaties: Looking to the Future

The thesis of this article is that, for a variety of reasons, national courts often make fundamental mistakes in deciding tax treaty cases. To address this problem, the article suggests a process for tax treaty experts to provide advisory to national courts on tax treaty issues.

Book Review: Current Tax Treaty Issues: 50th Anniversary of the International Tax Group (2020)

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Samsons or Methuselahs? The (Potential) Virtue of Article II Treaties

Why does Wüsthof sell a fancy kitchen knife for US$2000, but mass-produce something similar for US$100? Why do some of us mail holiday cards, while sending anything similar by email? Why does the American Journal of International Law print its journal, when interested readers—and there should be many—can read articles like Julian Nyarko's “Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements” online? Come to think of it, why bother with Article II treaties, when they too have a near substitute, more easily produced, in congressional-executive agreements? On this last question, Nyarko's article offers an interesting approach and an intriguing finding: if we measure the commitment strength of agreements in terms of duration, treaties are measurably longer and, perhaps, stronger. Having spent several years working on treaty issues for the Restatement (Fourth) of the Foreign Relations Law of the United States, I am acutely (and perhaps embarrassingly) interested in finding out why they matter. In this essay, I note some misgivings about how the article reckons the substitutability of agreements and about treating their age as a proxy for strength—perhaps Methuselah rivaled Samson's might at some point, but that was not how he distinguished himself—before closing by trying to imagine rival inferences that might be consistent with Nyarko's valuable insights.

The treaty of Waitangi: Preparing beginning teachers to meet the expectations of the new professional standards

know quite a lot about the Treaty but I still don't know what to do! This paper addresses the tension created by new demands for beginning teachers to be able to demonstrate their knowledge and use of the Treaty of Waitangi in their first years of teaching in schools. For many years the expectations placed on teachers in regard to understanding and implementing the Treaty have been vague and inconsistent. While many beginning teachers have good understandings in terms of history and content from their teacher education courses, they often lack confidence and direction in translating these into practice. The advent of new professional standards incorporated into the collective employment contracts of primary and secondary beginning teachers requires clearer understandings, not only for the beginning teachers but for their tutor teachers as well. This pape• also discusses and compares different versions of the Treaty for there are three that are relevant to any discussion of Treaty issues. Finally, this paper explores ways in which student and beginning teachers may create a framework for such implementations to occur. The focus is on the establishment of a set of understandings that allow the creation of principles linked to each of the articles of the Treaties. This process can provide realistic ways in which beginning teachers can demonstrate that they do meet the dimensions relating to the Treaty of Waitangi in the new professional standards.

Controlling Land: Historical Representations of News Discourse in British Columbia

News discourse about treaty issues privileges postcolonial discourses about ownership and governance of land and excludes a wide range of indigenous voices. this paper explores how news items interweave the frame “indigenous peoples as a threat” into their coverage of two events, analyzed as separate case studies, that have significant implications for the control of land in British Columbia. The first case study event is the Nisga'a's 1998 referendum on the Nisga'a Treaty and the second is the 2002 British Columbia Treaty Referendum. Reportage of both events was highly racialized and organized around the presumed threat that indigenous peoples pose to settler values. Discourse orbits around several rhetorical arguments, including “‘our’ government is colluding with First Nations to impose race-based governments on British Columbians; and “the will of the majority must prevail over the political maneuverings of minorities and other ‘special interest groups.'” While news discourse focused on the potentially destructive impact of treaties on settler interests, any discussion of the enormous risks treaties represent for indigenous peoples was completely absent.

Maritime Expansion and Delimitation After the Timor Gap Treaty

The Timor Gap Treaty on oil and gas management cooperation in some parts of the Timor Sea was full of political intrigues between Australia and Republic of Indonesia, since the treaty which comprises three areas of cooperation was detrimental to Indonesia and it indicated the highest influence of Indonesian Republic by Australia. Renunciation of the treaty due to the independence of Timor Leste after a referendum resulted in the issue of maritime delimitation between Timor Leste and Indonesia. Nevertheless in fact in 2002 the new state declared maritime expansion to a distance of 100 nautical miles measured from the former Timor Gap lines. The result of the expansion was that it potentially reached to Indonesian oil and gas fields located in the west and east of the lines. Apparently the unilateral expansion conducted by the country which from 1975 until 1999 was the 27th province of Indonesian Republic motivated both states to accelerate maritime delimitation aimed at achieving equitable solution. Although some points existing in border territory have not been agreed yet, the disagreement did not hamper the two states to conduct any negotiations regarding maritime delimitation, mainly delimitation of exclusive economic zone on the basis of the international law rules aimed at achieving equitable solution. This article is designed to examine the substance of Timor Gap Treaty and other issues relating to it, such as the maritime expansion and implementation of the equitable solution principle in maritime delimitation between the two states after the Timor Gap Treaty.

BEPS Action 2: Neutralizing the Effects on Hybrid Mismatch Arrangements

Curbing tax arbitrage is one of the main priorities of the Organization for Economic Cooperation and Development (OECD) (endorsed by the G20 and the G8) ever since the public debate on base erosion fully erupted. Neutralizing the effect of hybrid mismatch arrangements has become Action No. 2 of the OECD Base erosion and profit shifting (BEPS) Action Plan. This has resulted in the recent 2014 deliverable, which is divided into two parts: recommendations for domestic law (part I), and treaty issues (part II). The authors analyse and evaluate the report on the 2014 deliverables on BEPS action point 2. They submit that, given the draw backs of specific anti-hybrid rules as to practical and political feasibility, a further review of alternatives is warranted, particularly with respect to CFC and interest deduction limitations. A more simplified mismatch rule applicable to interest seems particularly worthy of further analysis, given that hybrid mismatch arrangements almost always evolve around interest deduction (a notable exception applies with respect to payments to reverse hybrids; however, effective CFC rules may be effective in countering this particular brand of mismatches). In addition, more generic interest deduction limitations (as opposed to specific hybrid mismatch rules) may be a viable complementary way to mitigate double non-taxation resulting from hybrid mismatches and thus act as a sufficient discouragement for entering into such arrangements.

Limit Base Erosion via Interest Deduction and Others

BEPS Action 4 focuses on excessive deductible interest and other financial payments, thus recommending the design of rules in order to prevent base erosion through the use of interest payments and double non-taxation both from an inbound and an outbound perspective. This article deals with some relevant questions related to this topic, such as the grounds for justification, the limitations based on classification and the financial expenses related to exempted income, with special reference to some relevant experiences and case law in the European Union. Taking into account that some tax jurisdictions have enacted provisions in this respect, the authors also analyse some comparative examples as well as the main concerns related to legal principles and taxpayers' position and Tax Treaty issues.

Taxation of Dividends, Interest, Royalties and Technical Service Fees

The author provides a detailed description of the taxation of dividends, interest, royalties and technical service fees in China. The article also looks at the tax treaty issues and recent measures introduced by the tax authorities to counter tax avoidance.

Direct Tax Treatment of Greenhouse Gas Emission Allowances within the European Union

The author, in this article, discusses the direct domestic tax and tax treaty issues surrounding the trading of greenhouse gas emission allowances between companies within the European Union under the Emissions Trading System.

Arbitration under the New Japan–Netherlands Tax Treaty

The authors provide an overview of the new mandatory arbitration clause contained in Art. 24 (Mutual agreement procedures) of the 2010 Japan–Netherlands tax treaty from a Japanese and Netherlands perspective. This clause covers all treaty issues and is not limited to disputes on transfer pricing and profit attribution to permanent establishments.

Short-term employment assignments under Article 15(2) of the OECD Model

This article summarizes the proceedings of the joint IFA/OECD Seminar at the 2008 IFA Congress in Brussels which examined the tax treatment of short-term assignments of employees under Art. 15 of the OECD Model. The article first reviews the treaty issues raised by the short-term cross-border movement of employees and describes the discussion draft issued by the OECD in 2007 in an effort to clarify the scope of the exception for short-term employment in Art. 15(2). The article then discusses the seven case studies considered by the panel.

Book Review: Michael Belgrave, Merata Kawharu and David Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi

This article is a book review of Michael Belgrave, Merata Kawharu and David Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (Oxford University Press, Melbourne, 2005) (402 + xxi pages) NZ$65. The book looks at issues surrounding the Treaty of Waitangi 16 years after the publication of "Waitangi: Māori and Pākehā Perspectives of the Treaty of Waitangi". Although it can be difficult to find cogent and lucid expressions of contrary opinions on Treaty issues, Northover states that the book's attempts to provide different ideological perspectives are relatively successful. Other pieces are more akin to case studies, illustrating wider schemes and issues of significance. It is concluded that the book deserves to be read by a wide audience, and that the contributions in the collection reflect Treaty issues that remain (and will remain) prominent.

First nations?: second thoughts

Controversial and thought-provoking, Tom Flanagan's First Nations? Second Thoughts dissects the prevailing orthodoxy that determines public policy towards Canada's peoples. Flanagan argues that this orthodoxy enriches and empowers a small elite of activists, politicians, administrators, middlemen, and well-connected entrepreneurs, while bringing further misery to the very people it is supposed to help. Over the last thirty years Canadian policy on issues has come to be dominated by an ideology that sees peoples as entitled to specific rights. Indians and Inuit now enjoy a cornucopia of legal privileges, including rights to self-government beyond federal and provincial jurisdiction, immunity from taxation, court decisions reopening treaty issues settled long ago, the right to hunt and fish without legal limits, and free housing, education, and medical care as well as other economic benefits. Underpinning these privileges is what Flanagan describes as orthodoxy - a set of beliefs that hold that prior residence in North America is an entitlement to special treatment; that peoples are part of sovereign nations endowed with an inherent right to self-government; that Aboriginals must have collective rather than individual property rights; that all treaties must be renegotiated on a nation-to-nation basis; and that Native people should be encouraged to build prosperous Aboriginal economies through money, land, and natural resources transferred from other Canadians. In First Nations? Second Thoughts Flanagan combines conceptual analysis with historical and empirical information to show that the orthodoxy is both unworkable and ultimately destructive to the people it is supposed to help.