The tax treaty arbitrators cometh

Next month sees the results of the OECD’s Base Erosion and Profit-Shifting project, as well as a discussion at the UN tax committee on alternative dispute resolution in tax treaties. India has apparently vetoed the inclusion of mandatory binding arbitration by default in the OECD model tax treaty, and it remains an optional provision within the UN model too. This post will show that arbitration provisions in treaties with developing countries are nonetheless on the march, and it will discuss some of the issues that this raises. It is taken from some comments I submitted alongside Todd Tucker on a draft paper for the UN committee’s discussion.

I’ve just returned from a field visit to, among other countries, Vietnam. With around 60 tax treaties in force, it’s been one of the most enthusiastic concluders of tax treaties over the last two and a half decades. It’s also quite clear that the General Department of Taxation regrets some of the things that the country gave away in its early negotiations. It is endeavouring to apply some provisions of these treaties in unconventional ways, and coming under pressure from foreign businesses who say that by doing so it is breaking with international norms. I sat in on a large meeting between the Vice Minister of Finance and Vietnam Business Forum (VBF) members, at which these concerns were raised. According to a typical statement from the VBF [pdf], Vietnam’s interpretations have “made the application of DTA[s] of foreign enterprises impossible, effectively it obliterate[s] the legitimate benefit of enterprises.”

As a consequence, Korean investors have recently begun to invoke the mutual agreement procedure (MAP) in the Korea-Vietnam tax treaty. Vietnam’s first ever MAP negotiation was taking place while I was there. MAPs, remember, do not require the two countries to reach an agreement, just to try their best. The resulting backlog of disputes among OECD countries is the reason why the OECD now seems to favour mandatory binding arbitration. Vietnam does not want to see mandatory binding arbitration clauses in its tax treaties, having already had its fingers burnt with investor-state arbitration. I am informed that such a clause was proposed by the US and rejected by Vietnam when the two countries negotiated their new tax treaty.

Vietnam said no, but others have not. One outcome of the Netherlands’ programme of renegotiations with developing countries, which is supposed to be about adding anti-abuse clauses, has been the insertion of binding arbitration clauses in several treaties with African countries. Here are all the arbitration clauses in African tax treaties to date (based on searching the IBFD tax treaties database for the term ‘arbitration’). They key column to look at is “how triggered”. Whereas the Canadian and Italian arbitration clauses require both countries’ consent before the case enters arbitration, all the others, following the OECD and UN model provisions, are binding on the developing country and can be triggered by either the other country or the taxpayer. The rest of the typology indicates that, as per usual, OECD-type provisions are more common than UN-type ones, even though the latter are supposed to be better for the developing country.

Arbitration clauses in African tax treaties

If we search for the term ‘arbitration’ in the IBFD tax treaties database, there are 219 results (caveat: not all of these references might be to ‘an arbitration clause’ as such, and some foreign-language treaties may have been missed). As the table below shows, arbitration clauses are of particular importance to jurisdictions whose treaty networks are used as part of tax planning strategies. By far the most arbitration clauses are in the treaty networks of the Netherlands and Switzerland, although the presence of Liechtenstein and Luxembourg in the top 10 list may also be indicative. At least two of the Swiss clauses, in its treaties with Peru and Argentina, are actually Most-Favoured Nation clauses triggered if the Latin American countries agree to binding arbitration with a third country. This suggests that, for Switzerland at least, arbitration clauses are important for its competitive position.

List of countries by number of tax treaties with some kind of arbitration clause

Here are a few issues that are presented by the spread of arbitration provisions that are binding on developing countries:

  1. There is barely any MAP experience in many developing countries. Interviews with revenue authority staff across numerous developing countries indicate that, outside perhaps the BRICS, many countries have yet to enter into a single MAP. Vietnam is a typical example. So the case for arbitration based on the huge backlog in OECD and G-20 countries is simply not there in many other countries, and may never be. Furthermore, that developing countries do not have the same experience of MAP negotiations as developed countries is a further reason why they should wait before agreeing to mandatory binding arbitration. If arbitration is designed primarily to increase pressure for a resolution in MAP, then the pressure on a developing country to capitulate at this stage will surely be increased by its inexperience in arbitration as well as MAP.
  2. The current UN model provision does not provide for the possibility of optional arbitration. If arbitration helps solves a structural problem in tax treaties, it is good for developing countries to consider it. But one way for them to take it slow is to sign up for clauses that create the option of arbitration without forcing them into it, such as those in the Italian and Canadian treaties with African countries. With such a provision, developing countries could build up some experience before deciding whether mandatory and binding arbitration is right for them. Unfortunately, this is not the current path taken by the UN committee, and so there’s little chance of developing countries obtaining it in negotiations.
  3. Arbitration enhances the negative impact of negotiation oversights. We know that, as in the case of Vietnam’s early treaties, the present impact was often not anticipated at the time the agreements were signed. While this situation has improved in some developing countries, in others, treaties are still being concluded now without adequate awareness among all parties of how they will bind future governments. There are various reasons for this, including: lack of technical expertise at the time of negotiation; politically driven negotiations in which the content of these treaties is barely considered; changing tax systems and economic conditions, especially the growth of e-commerce and services; new tax planning mechanisms; the relative autonomy of a small set of negotiators; weak or non-existent parliamentary ratification processes. Binding arbitration will further enhance this ‘golden straightjacket’ impact of tax treaties, reducing room to manoeuvre in cases where latter day tax treaties frustrate present day policy goals. This would especially be the case if a multilateral instrument were used retrospectively to add arbitration provisions to existing tax treaties.

A final thought. There are lots of reasons why eliminating all forms of double taxation faced by cross-border investors is a sensible thing to try to do. It is what tax treaties are supposed to be for. But sometimes governments, especially in developing countries, might deliberately choose to prioritise the maximisation of their tax base even when that leads to some double taxation. This is, arguably, what China, India and Brazil have done by adopting their own approaches to transfer pricing. Perhaps it is good if tax treaties leave sufficient space for this, so long as countries take seriously the repercussions of making use of that space.

British tax treaties with developing countries, 1970-1981

It’s been quiet on here because of a field trip in Thailand, Vietnam and Cambodia, of which more anon. In the meantime, I’ve been given the opportunity to present a paper based on a chapter of my thesis several times this autumn. It’s a historical study of the politics of Britain’s tax treaty negotiations. I presented it at the excellent African Tax Research Network conference earlier this month, where a few treaty negotiators told me it was interesting to see what goes (well, went) on behind the scenes on the other side. I’ll be giving it again at the Oxford University Centre for Business Taxation’s doctoral workshop, and as the papers there are posted online, I thought it might be time to post it here, too.

Here’s the abstract:

Why have developing countries concluded so many double taxation treaties with developed countries? Much existing research assumes that this diffusion results from the active pursuit of such treaties by developing countries, which have been willing to give up considerable taxing rights through them, in order to attract inward investment. This paper uses archival documents to examine treaty negotiations between the UK and developing countries during the 1970s. It finds that in many cases negotiations were in fact driven by the UK as a means of increasing the competitiveness of British firms in developing country markets. It also reveals a divide between the tax specialist community, for whom tax treaties were a project to export ‘acceptable fiscal standards’, and generalists in business and government, for whom they were a means of securing lower effective tax rates. When these two groups’ objectives came into conflict, it was generally the experts who determined the UK’s policy objectives.

Here’s a link to the PDF.

“We have some doubt whether it would really prove useful.” The origins of UK opposition to a Global Tax Body.

As OECD and G-77 countries debate the status of the UN tax committee at the Financing For Development conference in Addis Ababa, the finger has once again been pointed at the UK and US.

This is from today’s Guardian:

The UK joined the US and several other wealthy countries at the UN financing for development conference in Addis Ababa in a manoeuvre to limit discussions on tax policy at the UN, arguing that the Organisation for Economic Cooperation and Development (OECD) was taking the lead on tax issues.

This is from the Guardian in 2008, at the time of the last FFD conference in Doha:

The Observer has established that the UK is lobbying to remove paragraph 10 from the draft Doha Outcome Document…Paragraph 10 focuses on fighting tax evasion. It aims to encourage global tax information-sharing and simplified tax laws. Most crucially, it wants to upgrade the UN’s tax-expert panel to intergovernmental status, elevating the importance of the issue of individual and corporate tax avoidance and evasion. The UK, together with the US, Canada and Australia, are opposed to the measure, according to sources in the UN.

These positions are hardly new. As the memo reproduced below shows, the UK was opposed to the creation of the original ad hoc group of experts, which became the current UN committee, way back in 1967. The UK view then was that this “technical matter” was better discussed in a “more homogenous group” (the OECD), rather than risking “confrontation” between capital-exporting and capital-importing countries.

The current OECD member state argument is mostly about the cost of a parallel bureaucracy at the UN (see, for example, this EU position statement [pdf]). While that was also present in 1967, it’s interesting that today the UK’s main concern, about confrontation at the UN, is no longer articulated by the UK.

Link to the memo on Slideshare.

A global tax body for what?

The global tax body

It’s only a few days until the start of the Third UN Financing for Development summit in Addis Ababa. This is the key crunch point for discussions on if and how the international tax architecture might change to better accommodate developing countries in decision-making. Although the debate about strengthening the UN tax committee (UNTC) from its current impoverished and non- governmental status has been simmering for years, developing countries and NGOs seem to be throwing themselves into it this time round with more enthuisiasm than in the past. Yet the most recent draft of the Addis outcome document has only two modest commitments:

To this end, we will increase the frequency of its meetings to two sessions per year, with a duration of four working days each. We will increase the engagement of the Committee with the Economic and Social Council (ECOSOC) through the Special Meeting on International Cooperation on Tax Matters with a view to enhancing intergovernmental consideration of tax issues.

Over on his ever-insightful Uncounted blog, Alex Cobham points to three possible outcomes: the OECD retaining leadership, a shift towards the IMF, and the creation of the intergovernmental tax body that campaigners want. This builds on the analysis put together by Eurodad [pdf], summarised in a short post. What I intend to do here is to step back a little from the advocacy messages and think both concretely and theoretically about what that ‘stronger UN’ option really is.

What we have

To begin with, there are no binding global tax rules. There are standards and models, but they only have legal force when countries use them as the basis for national law or bilateral treaties. (Although in some instances international tax rules do arguably have a ‘soft law’ role, such as the way courts may refer to the model commentaries when interpreting treaties, or the way a Kenyan court upheld the OECD transfer pricing guidelines in the absence of national guidance [pdf]). But international norms do have two important strengths:

  1. A significant moral weight. It is easier to justify a new law that might otherwise scare investors, or a tax treaty negotiating position, if it complies with international norms.
  2. Technical sophistication. For a developing country with a small bureaucracy, taking an ‘off the shelf’ set of transfer pricing rules is much easier than developing your own.

In the area of information exchange, there is the Global Forum peer review process, which relies on the threat of counter-measures, and there is the Multilateral Convention on Mutual Assistance, which is binding, but far from universal.

Campaigners want to change this situation, I think, in two ways. First, they want non-binding standards that better suit the needs of developing countries. This might mean, for example, transfer pricing rules that are easier to enforce, model treaties that give greater scope for source taxation, or a country-by-country reporting standard that entitles all countries in which a multinational operates to the information. Second, they want to create or expand the category of binding global conventions that would force developed countries and tax havens to comply with developing countries’ preferences. This would include for example mandatory global automatic information exchange, mandatory public country-by-country reporting in the home country of a multinational company, and perhaps some kind of mandatory approach to CFC rules that shields developing countries from profit shifting. You can see these two themes in the Eurodad Q&A document:

The overall purpose of the intergovernmental UN tax body should be to ensure that countries do not erode each other’s tax bases, and that the international tax system is transparent, coherent and supports equality and development. In order to do this, the body would have to address a number of different issues, including base erosion and profit shifting, tax and investment treaties, tax incentives, progressive taxation, taxation of extractive industries, harmful tax practices, beneficial ownership transparency, public country by country reporting, automatic exchange of information for tax purposes and alternatives to the arm’s length principle. In order to ensure that the mandate of the tax body is broad enough to tackle all these issues – as well as new issues that might emerge – it’s important that the mandate is not too narrow and specific.

In the longer run, and with a view to ensuring implementation of the decisions of the tax body, we should have a legally binding UN Tax Convention. Developing such an agreement should therefore be one of the key tasks of the intergovernmental body

Why we have it

In international relations thinking, there are broadly three themes that different scholars use to analyse what international institutions are and what function they serve. They boil down to power, preferences and ideas.


From this perspective, international institutions are merely tools through which dominant states exert their power. This would lead us to conclude that any realignment in the politics of international tax will (or will not) happen regardless of what goes on at the UN next week. An upgraded UN committee wouldn’t create change, rather it would simply reflect a shift in the underlying power dynamics. The annex to the UN transfer pricing manual, and the participation of developing countries in the BEPS project, already illustrate this. The way to get better outcomes for developing countries would be to bolster their capabilities, rather than to realign institutions, which would play no causative role in itself.


A second way of looking at things is to put power to one side and think about collective action problems. In this view, states create institutions because they need some kind of coordination mechanism to help overcome the natural incentives that make cooperation difficult. Cooperation to deal with double taxation is described by game theorists as a coordination game (also known as a ‘battle of the sexes‘ or ‘Bach or Stravinsky’): everyone wants to reach an agreement, the difficulty is just finding a ‘focal point’ around which to converge. The model treaties are focal points that represent the widest possible agreement at international level, but leave the hard bargaining on non-consensual issues to the bilateral setting.

If this is the case, international tax institutions’ most important roles are entrepreneurship and signalling. They create focal points around equilibrium solutions from which everyone will benefit. Critics of the current regime argue that even when using the UN model treaty, the resulting treaties benefit capital exporters more than developing countries, who have to make most of the sacrifices of taxing rights. They want to see a more radical (or stripped down) UN model. But if the role of the UN model is to signal an equilibrium point, making it more radical might mean that it ceases to play this important role, because in fact it doesn’t represent a possible equilibrium between different groups of countries any more. This might come at the same time as the OECD instruments cease to play that role because developing countries are also beginning to deviate from them. The goal here would be to find a new equilibrium, from which developing countries benefit more, but on which everyone (or enough countries) can still agree.


The third lens we can use begins from a fundamentally different point of view: that the international context can change the preferences of diplomats, and hence of countries themselves.

As Sol Picciotto states, in International Business Taxation [pdf]:

Perhaps the most important outcome of the inter-war years was to begin to create a community of international tax specialists…a community within which ideas and perspectives as well as economic advantage could be traded. It was these direct contacts between specialists which filled the gap created by the difficulties of resolving by any general principles the issues of international allocation of the tax base of international business.

If this ideational process among tax diplomats is an important part of the puzzle, what role does the UN committee play? Is it a forum through which delegates from developing countries develop their own shared agenda, or one in which they become complicit in an OECD country-led agenda? Consider two pieces of evidence from British civil service files. This first, from a Ministerial briefing note in 1976 on the stalemate in tax treaty negotiations with Brazil, illustrates that some British officials saw the UN as a tool to ‘educate’ developing countries:

Our view, which is shared by the Americans and the Dutch, has been that it is of little use to try to “educate” developing countries – at the United Nations Expert Group on tax treaties and elsewhere – about acceptable international fiscal standards if, when it comes to the crunch, we are prepared to sacrifice principle in order to secure an agreement.

Here, in contrast, is how Kenyan negotiators used the knowledge they gained from attending UN meetings to bolster their argument for a management fees clause in their 1973 treaty with the UK, even though such a clause is only being added to the UN model some 40 years later:

Mr Cropper [from Kenya] said that Kenya’s proposal was only intended to close a loophole and he did not see why there should be any objection to it. It was a point which had been raised by a number of countries in the UN Group of Experts…Mr Cropper said that there had been a big change in developing countries’ attitudes in the UN Group of Experts…Mr Ihiga [also from Kenya] said that modern thinking was that a withholding tax on management fees was justified.

If ideas are important, the UN should be seen as a community of experts working not just to find solutions that fit the power balance and national preferences of UN member countries, but rather to change international norms and national preferences, towards a more pro-development orientation.

What we might get

How could a restructured UN Tax Committee achieve that? ‘Upgrading’ advocates generally name three categories of reform. Let’s consider each in turn, in the light of the above discussion.

Intergovernmental status

While it would have some effect on the UNTC’s prestige, funding and composition, the major change that this would create would be to politicise the UN committee. It would mean that national members were more accountable to their home governments and to civil society. Like other issues such as trade and climate change, the shifting balance of power between developed and developing countries would probably increase the areas in which there was a stalemate. Politicisation would also allow campaigners in developed and developing countries alike to work at that national level to act as allies of radically positioned developing country officials, potentially increasing their negotiating capabilities, but crucially also changing preferences at national level.

A second impact would be that it would allow countries to send the most relevant person for a given discussion, and so the UN committee could expand its work onto a wider variety of issues. I don’t believe that it would deliver an international convention that would bind developed countries and tax havens into new rules any time soon, because the power relations are not yet aligned in that way, and because it’s hard to see a solution around which national preferences are aligned.

Changed composition

With more members from developing countries, we might expect that majority opinions that suit developing countries could be forced through the committee more easily. Or, more practically, developing countries might be able to make their case more forcefully in deliberations. But if the aim is to find an equilibrium point that will work in the real world, simply outnumbering developed countries to produce a more radical set of UN instruments without changing the preferences of developed countries will be of limited effect. This is why “tyranny of the majority” is currently a last resort when the committee takes decisions.

More funding

This would create a more autonomous secretariat that might be able to compensate for developing countries’ more limited technical capacity in UN discussions, doing some of the work to assuage objections from developed countries and so find more developing country-friendly focal points. It would also make the secretariat more visible, enhancing the prestige of UN instruments, just as senior OECD secretariat staff travel the world promoting its instruments. More funding for more frequent meetings might allow the committee to work faster, keeping up with changes at the OECD, but this would depend in part on developing countries’ capacity to participate.

In conclusion, the development case for a better-resourced, more transparent UN committee is compelling. But the committee’s impact will continue to depend on the uptake of its instruments by countries in national laws, bilateral treaties, and adherence to any new binding multilateral convention. For this reason, ideas and preferences in developed and developing countries will need to change, alongside developing countries becoming more capable actors in international negotiations. A more dynamic, politicised UN committee might help to create those things over time, but in the meantime I think it is just as much at the national level that campaigners need to focus their attention if they want to change international outcomes.

Policy drift in international tax

The more I think about it, the more I like the idea of policy drift as a way to explain what might at times seem like perverse outcomes in the international tax system. This post is an attempt to road test this idea.

Policy drift seems to originate with this 2004 article by Jacob Hacker [pdf], which was then magnified by the seminal book he co-authored, Winner Take All Politics. It starts from two powerful insights. First: it is much easier for interest groups to defend the status quo than it is for them to change it. Second: if a policy does not adapt in response to changes in the economic or social world, then its effects may change. Combined, these insights show the effects of a policy may change over time because it is too difficult to make the changes needed to adapt it to changing circumstances.

Hacker discusses how economic and social changes in the US from the 1970s onwards, such as the decline in privately provided healthcare, exposed people to new risks. Efforts to adapt government social policies, which had originally been designed to protect people from such risks, were defeated in the political process, so that they no longer achieved the outcomes for which they had been created. As Hacker puts it, “formal policies have been relatively stable but outcomes have not.”

Policy drift is said to happen when it is hard to make formal and informal changes to a policy. There are two other concepts in the same literature that are worth considering. Where it is hard to make formal changes to a policy, but easy to ‘convert’ it by reinterpreting it, there can be an internal adaptation of a policy. Where it is easier to make formal changes but harder to convert existing policies, the outcome may be ‘layering’, in which a new policy is implemented on top of an existing one.

Let’s consider three taxation examples.

Property taxation

It’s 1991, and the UK government introduces a new tax to fund local council services. It is based on house prices, valuing every property in the country and putting it within eight price bands. 24 years later, all properties are still placed in a band based on an estimate of what their value would have been in 1991. There are many arguments for and against this approach, but you can make the case that it achieved a form of horizontal and vertical equity when it was introduced, especially compare with what it replaced.

But over those 24 years, the value of properties has not changed equally in different areas. People living in London, for example, where prices have risen much faster than the UK average, do very well out of a system that is based on what their property was worth in 1991. Successive governments have recognised this, but feared the electoral consequences of a reform that would increase the council tax charges of a large number of people.

It seems that an internal conversion – revaluation of properties – is a harder thing to achieve than a formal layering – the introduction of a new tax on the most valuable properties, which was proposed by some parties at the election just gone. Absent both, the policy has drifted, from a broadly progressive tax on property towards one that is flat at the higher levels.

Tax treaties

It’s 1970, and the government of a recently independent developing country wants to attract foreign investors, who will bring with them much needed capital and technical expertise. It offers them generous tax incentives, but it finds that these incentives are frustrated by the foreign tax credit system of the investors’ home country: the investor pays less tax in the developing country, but this just means they pay more tax in their home country instead. So the two countries conclude a tax treaty. The treaty requires the developed country to grant ‘matching credits’ so that firms can keep the benefits of any tax incentives, but in return the developing country must lower its withholding tax rates on dividends remitted by investors from the treaty partner. These lower rates transfer the burden of double taxation relief away from the developed country, which would otherwise have paid for it through its foreign tax credit, onto the developing country. Maybe that was a fair deal, maybe it wasn’t.

Now it’s 2014, and most developed countries have moved from a foreign tax credit system to a dividend exemption. The tax sparing credits are no longer necessary, because the developed country doesn’t tax its outward investors’ foreign profits. Meanwhile the lower dividend withholding tax rates no longer shift the burden of double tax relief from the devloped to the developing country, since the developed country has foregone the revenue either way. So now the agreement serves a very different function: it makes it cheaper for the investor to repatriate profits from the developing country, an effect that is paid for by the developing country. It distorts the market for inward investment by treating investors from this one country differently, and it might have become a conduit through which investors from third countries divert their investments to obtain the more generous treaty.

Maybe these present day effects are good for the developing country, or maybe they aren’t. But the policy has drifted, because the treaty certainly has very different effects from those intended when it was signed; furthemore, the original bargain between the two countries is no longer relevant, and the distribution of the costs and benefits between the two partners may have changed dramatically. There could perhaps be an internal conversion, by chosing to interpet the treaty in certain ways, but this would be difficult; formal change is tricky too, because it requires cancellation or renegotiation of the treaty, which might scare investors, and because if one country loses out from the shift in costs and benefits, the other country generally has no incentive to renegotiate!

International tax rules

For much of the 20th century, government representatives and technical experts sat in rooms developing the component parts of the international tax system. Let’s simplify and say that the purpose of this exercise was to reach a situation in which multinational companies’ tax bases were distributed among the countries in which they operated according to the contribution their operations in each country made to their overall profits. The deal was reached at a time when, broadly speaking, you needed a physical presence in a country to do that. (The arguments made for a withholding tax on management fees in the 1970s tended to be about preventing tax avoidance, not fair distribution of taxing rights). So the concepts and tools developed in the past all require some kind of physical presence.

In the 21st century, it’s become apparent that a physical presence is no longer a prerequisite for significant value-added in a country. So the system does not achieve this original purpose. Instead, it gives an advantage to those countries that are home to the physical establishments of businesses that generate a lot of value in other countries without one. Arguably, the source/residence balance has shifted in favour of residence countries. Certainly, the policy has drifted.

The OECD’s desire not to open up the source/residence discussion during its BEPS process illustrates the difficulty in achieving any formal change in these existing policies. That China and India have been attempting to re-interpret the core concepts that they’ve already signed up to, including through changes in the commentary to the UN model treaty, suggests that there may be some internal conversion afoot.

In any event, I think these concepts of drift, conversion and layering – and especially drift – are quite helpful in understanding the path-dependent development of national and international tax systems. There are, of course, proposals to rebuild both from the ground up. But such proposals need to take into account the political constraints and the economic and social developments that have moulded the status quo.


The Folketinget (Danish parliament) chamber

The Folketinget (Danish parliament) chamber

At the risk of turning this into a travel blog, here I am in Denmark’s parliament building, the Borgen, a treat for aficionados of the TV programme. I spoke yesterday at a hearing organised by the parliament’s fiscal affairs committee on Denmark’s tax treaties with developing countries. The hearing was provoked by ActionAid Denmark’s questioning of the Denmark-Ghana tax treaty, which was ratified recently by the Danish parliament.

The British Public Accounts Committee this was not, and there was some good natured discussion between the different sides. Everyone agreed that businesses prefer there to be more tax treaties in place. The MPs, business and NGO representatives all agreed that there should be more transparency in the negotiation process.

We all agreed that having a treaty might improve the prospect of Danish investment into a developing country. Denmark’s tax minister and the industry representatives all said that a key consideration – perhaps the main consideration – for Danish treaty policy was to help make Danish companies competitive in the markets in which they invest. All of these arguments fell short, in my view, of establishing a clear cut, generalisable and evidence-based case that this is to the benefit of developing countries themselves.

Another point that I took from the discussion was the need to untangle the main things that tax treaties achieve, in a world where the most significant forms of double taxation are generally relieved unilaterally in the absence of an agreement:

  1. Clarifying definitions, providing dispute resolution, and other technical matters that make double taxation less likely.
  2. Giving tax authorities the legal basis for cooperation in enforcement matters.
  3. Offering businesses the reassurance of a credible commitment to fair and ‘civilised’ (not my word) tax treatment in the future.
  4. Reducing the taxing rights of the developing (ie source) country.

The case that treaties are necessary to provide items 1, 2 and perhaps 3 is strong. There is a (debatable) economic case for reducing source taxation to attract investment, made well by Clive Baxter from Maersk yesterday. But why respond to that case through bilateral treaties, which are harder to alter if the facts change, and which distort the inward investment market by treating investors from different countries differently? Why should the quid pro quo for items 1-3 be item 4? The fallacy, it seems to me, is to conflate the case for cooperation through treaties with the case for lower source taxation.

Here is my presentation. I’ll update this post when the others are all online, but they will only be of use to Danish speakers!

Is it or isn’t it a spillover?

Last week’s Global Tax Policy Conference at Maastricht University on “international spillovers in taxation” has got me thinking. In particular, I was fascinated by Belema Obuoforibo’s presentation on the IBFD’s methodology for ‘spillover analyses’ (here is a link to an IBFD Powerpoint describing it). The term ‘spillover’ comes from the IMF, a term they use in economic analysis more generally to refer to “the impact of policy actions in one country on others” and around which the IMF framed a whole policy paper. Since its mention in the famous international organisations’ report to the G-20 [pdf], spillover analysis has become a common civil society demand, and the Netherlands and Ireland have gone on to commission them, with a focus on the interplay between their tax treaties with developing countries and certain provisions of their domestic tax law.

But a ‘spillover analysis’ is not the same as an ‘impact assessment’, and I think it’s important to understand the distinction.

The IMF’s recent paper on spillovers in international taxation distinguishes between ‘base’ spillovers, in which an action by one country affects another country without that country doing anything in response, and ‘strategic’ spillovers, in which the change creates an incentive for the second country to change its own policies – tax competition being the obvious example. All very interesting, but I sometimes find it tricky to see how the IMF’s definition applies to the specific areas discussed later on the same report.

One reason for this is that a ‘spillover’ effect from one country on another implies that the affected country is a passive victim. This is not the only way in which one country’s tax system might affect another’s. The decision by a developing country to sign a treaty, or to adopt an international norm, makes it an active participant, but that doesn’t diminish the impact on it of doing so.

A second issue is that ‘spillover analysis’ in practice has tended to focus on how one individual country’s tax system might be different to the norm. Following the Dutch spillover analysis, the government noted that Dutch treaties with developing countries were generally on the same terms as those countries had secured with comparable treaty partners. The IBFD’s methodology is based on how aspects of one country’s tax system compare with similar countries. So the growing practice of spillover analysis, it seems, considers impacts relative to the international average, not absolute impacts. It is a way of finding out if a country is worse or better than average, rather than seeking out all positive or negative impacts.

Let’s consider some examples from the area of tax treaties, to illustrate how these limitations play out in practice:

1. Is it a ‘spillover’ if the affected country actively opened itself up to the vulnerability?

Ireland didn’t used to be a tax haven. It used to be a ‘high tax’ jurisdiction like most OECD countries. Its transformation into a hub used for base erosion and profit shifting is relatively recent, and many of its tax treaties predate this. The changes to Ireland’s tax system transformed its tax treaty network into a major headache for countries such as Zambia, and it seems quite right to describe these effects as spillovers: treaty partners could not have anticipated them when agreeing terms in their tax treaties.

The same could probably be said of the Mauritius-India treaty, which originally predates Mauritius’ generous offshore regime. But it couldn’t be said of Mauritius’ treaties with many African countries, which they signed up to at a time when the risk of treaty shopping through Mauritius would have been clear. This is not a ‘spillover’ of Mauritius’ tax system, because it was a conscious choice taken by the developing countries. But it would be a shame if any analysis of the impact of Mauritius’ treaty network didn’t consider these costs.

2. Is precedent in tax treaty negotiations a strategic spillover?

When Zambia signed a treaty with China containing much lower withholding rates than it had previously agreed to, it may not have anticipated the British reaction, which was to request a renegotiated treaty on similar terms. Zambia also wanted to renegotiate with the UK, mainly to seek improved powers for cooperation and information exchange with the British tax authorities. The implication of the Chinese treaty, however, was that the UK expected similar terms in return for Zambia’s demands, significantly lowering the Zambian tax take from British investors. It seems to me that this was a ‘spillover’ effect of China’s aggressive negotiating position…but I suspect it would be unlikely to be picked up in any ‘spillover analysis’.

3. Are most-favoured-nation effects spillovers?

In April 2003, Venezuela and Spain signed a treaty with a most favoured-nation (MFN) clause in its interest article, which would be triggered if either country subsequently signed a treaty with a lower maximum rate in the interest article. In May 2006, the bilateral MFN clause in its interest article was triggered through a kind of domino effect: Estonia and the Netherlands signed a treaty granting exclusive residence taxation rights over interest; this activated the MFN clause in the September 2003 Spain-Estonia treaty, which in turn activated the MFN clause in the Venezuela-Spain treaty. As a result, according to an article in Tax Notes International, “Venezuela’s treaty with Spain has undoubtedly become the most favorable tax treaty executed by Venezuela to date.”

This was a policy action by two countries that had ramifications for two other countries, but which they should have anticipated when they agreed to the clause. The inclusion of a symmetrical clause, which could be activated by Spain as well as Venezuela, may have been a negotiating error by the latter. But was the MFN activation a spillover?

4. Is it a spillover if a country is just an aggressive negotiator?

The countries that have tended to do spillover analysis so far are those facing accusations that they’re used for treaty shopping. And the main policy response, at least from the Netherlands, seems to have focused on adding anti-abuse provisions into its treaties. What if there is no treaty shopping, but instead just a set of treaties that take most of the taxing rights away from developing countries? As I noted in point 1, the developing countries actively signed up to these treaties at some point in their histories. The IMF spillover paper sounds a cautious note about tax treaties because of the fiscal costs to developing countries of limiting their source taxing rights, but it’s not clear (to me at least) how the plain vanilla impact of the source/residence split could meet the definition of a spillover.

5. Is it a spillover if it’s no different to the norm?

Consider many developed countries’ unwillingness to share the right to tax their shipping firms with the developing countries whose waters they use, and who are in some cases very keen to tax the profits from shipping. Developed countries have been relatively united on this, so even if we accepted that the case described in point 4 above was a ‘spillover’ effect, I think the implication of the IBFD’s methodology would be to find no negative spillover from the hardline stance taken by, say, the UK. But just because this ‘policy action’ is consistent with comparable treaties and with the model conventions, does that mean countries should not assess the impact on developing countries of the policy stance?

In conclusion, it seems to me there is a risk that the focus on the concept of ‘spillover effects’ might lead to an overly narrow analysis of the impacts of a jurisdiction’s tax policy actions on developing countries. Or, to put it another way, could the choice of terms used to discuss this issue have linguistic spillover effects?

Update: Joe Stead points out that I have slightly undersold the 2011 International Organisations’ report to the G-20: