Non-discrimination in Tax Treaty Law and World Trade Law: The Impact of Formal, Substantive, and Subjective Approaches

About this book:
Non-discrimination in Tax Treaty Law and World Trade Law is the first comprehensive review of non-discrimination rules in World Trade Organization (WTO) and tax law, combining critical commentary on case law with proposals for an innovative new concept for solving cases of discrimination in tax treaty law. Non-discrimination is a central obligation under both tax treaty law and trade law, but its application raises complex challenges in the Base Erosion and Profit Shifting era. However, in seeking to strike a balance between national and international interests, its application differs in the two areas of practice. This deeply researched and authoritative work explains the policy issues and how non-discrimination analysis works.

The author’s thesis, on which the book is based, was awarded the Wolfgang Gassner Science Prize 2019 and received an Honourable Mention for the Mitchell B. Carroll Prize 2019 of the International Fiscal Association.

What’s in this book:
Among the practical issues affecting non-discrimination examined in detail are the following:

implications that can be drawn from the concepts of non-discrimination under WTO law and Article 24 of the OECD (Organisation for Economic Co-operation and Development) Model;
direct and indirect discrimination and analysis of comparability in WTO law and tax treaty law;
the most-favoured-nation and national treatment rules under the General Agreement on Tariffs and Trade and General Agreement on Trade in Services;
the meaning of ‘likeness’ and ‘less-favourable treatment’;
claiming non-discriminatory tax treatment before tax administrations and courts under a tax treaty;
justification of measures against harmful tax competition, low taxation and hybrid mismatch arrangements;
thin capitalization rules, progressive tax rates, foreign losses, group taxation and relief from juridical and economic double taxation under Article 24 of the OECD Model; and
integrating a justification defence into any stage of a non-discrimination analysis.

The author establishes to what extent formal, substantive and subjective approaches may be applied in a non-discrimination analysis, providing the reasons for the approaches taken. A two-step comparability procedure is applied to selected cases of potential tax discrimination, demonstrating how policy arguments can be addressed under Article 24 of the OECD Model.