Engagement in various mechanisms
Governments, including their competent authorities or tax administrations, may engage as disputing party in out-of-court resolution of international, cross-border or treaty tax disputes at either domestic or international level.
At domestic level, depending on applicable laws or administrative practices, governments may have mediation or technical advice by independent third parties available as means to agree out-of-court settlements of disputes with taxpayers, and in some countries arbitration as well. Also tax concession or tax stability agreements governments have concluded with investors may provide for any such mechanisms.
At international level, for instance, governments may face arbitration, on claims by taxpayers, under an applicable investor-state dispute settlement (ISDS) mechanism as commonly provided for by investment treaties.
Under tax treaties, governments, in disputes with other, foreign governments, may voluntarily engage in arbitration, mediation or facilitation, or technical advice processes, as part of their endeavours to achieve settlement over mutual agreement (MAP) procedures. (Their authority to this end is expressly confirmed by the OECD 2017 Model Tax Convention on Income and on Capital, in paragraph 69 of the Commentary on Article 25).
Failing timely settlement, governments may also be forced to arbitration on claims by taxpayers, under bilateral tax treaties providing own arbitration provisions or supplemented by the arbitration piece under the Multilateral Convention to implement tax treaty related measures to prevent base erosion and profit shifting (MLI), or, specifically within the EU, under Council Directive (2017/1852) on tax dispute resolution mechanisms, or, where it concerns disputes over transfer pricing issues, the Arbitration Convention (90/436/EEC).
Where provisions for out-of-court mechanisms are in existence, they may offer various options for rules or procedures from which governments have to make their individual choices, as is the case, for instance, under the arbitration piece of the MLI. Or, they may hold only default provisions, requiring governments to consider whether from their particular perspectives any other rules or procedures might not be preferable.
Presentations and tailored advice
Tribute is available to give general presentations on the contents and functionings of each of these dispute resolution mechanisms, and their various uses at either domestic or international levels.
Tribute can also provide tailored advice on which of the mechanisms of arbitration, conciliation, mediation or facilitation, or technical advice would best suit a particular dispute in hand, and how any selected mechanisms may be used in a most cost-effective manner.
Next, Tribute can assist in the drafting of clauses, agreements, laws, regulations or procedures, the entire legal or contractual framework necessary to make any mechanisms of international tax dispute resolution operative in practice.
Tribute also offers opportunities for training government officials in the practical operation of the various dispute resolution mechanisms. For example, for competent authorities in tax treaty matters, training in an effective operation of mutual agreement (MAP) procedures, including the design of regulations and procedures for taxpayers seeking to access MAP, strategies for MAP negotiations, and the use of mediation or arbitration in achieving MAP resolution. Any trainings may in consultation be tailored to meet individual needs or preferences.
Selection of arbitrators, mediators, technical advisors, or expert witnesses
Tribute, most importantly, can avail experts from the diverse Tribute list of qualified experts for appointment as arbitrators, mediators or facilitators, technical advisors, or expert witnesses.
As the various dispute resolution processes as a rule are ad hoc, with no permanent facilities being in place, Tribute is available also for assistance in practical matters of organizing these processes, including, for instance, case administration, or any physical of video hearings.
To this end, Tribute maintains relations with several arbitration institutes, including at present the Permanent Court of Arbitration (PCA) at the Peace Palace in The Hague, Netherlands, and the Centro de Arbitraje y Conciliación (CAC) in Bogota, Colombia. At request, these institutes can support the administration of arbitration, conciliation or mediation processes with their specific expertise and facilities. Tribute seeks to expand this type of cooperation to include more arbitration institutes elsewhere, to ensure optimal regional coverage.
Occasionally, Tribute is available to administer itself arbitration or mediation processes if that is what disputing parties would prefer.
It should be noted that none of the assistance Tribute offers in any of the various dispute resolution processes requires an exchange of tax data which may be confidential or protected under countries’ privacy laws. Governments are therefore not prohibited in requesting assistance from Tribute for reasons of confidentiality.
The Tribute secretariat may be contacted for any further details on services offered, including applicable fees.
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