On 22 – 24 February 2022, I had the great pleasure of being a trainer at a course on international taxation organised by The Capabuild Foundation and designed for a group of judges in Kenya. Our boadcast was live, from the Parkhotel in Rotterdam.

Capabuild provides high-quality technical training in areas such as tax treaties and international tax policy (e.g. the discussions in the Inclusive Framework). Fiscal capacity-building efforts are ‘hot’ at the moment. This is good – but note: not without its risks. Tax specialists coming from jurisdictions where the OECD’s Model Tax Convention has traditionally been leading (such as the Netherlands) are at risk of uncritically reproducing the OECD-style of thinking on international tax. We all love Pascal Saint-Amans and the arm’s length principle, but why should a developing country buy a used car from a club that was – until very recently – the exclusive stomping ground of the richest countries in the world? Making agreements to suit their own economies, business interests, and policy objectives? The term Davos-with-profit-allocation-rules springs to mind.

OECD is not the only show in town

The OECD is not a neutral, value-free organisation, and the tax approaches set out in the OECD Model Tax Convention and its spin-offs (e.g. the OECD Commentaries and the Transfer Pricing Guidelines) are not the be-all and end-all of international tax. In particular, the UN Model Tax Convention, which is basically a compromise between rich and developing countries, deserves more attention. This is especially true for a country like Kenya, which is not a member of the OECD.

The status of the OECD’s approaches is not just about the conclusion of new treaties or the termination of existing ones. Depending on the domestic rules of tax treaty interpretation, I can see several interesting questions regarding the status of non-OECD sources for the interpretation of tax treaties by States. The verdict is still out on the status of the OECD Commentaries under Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT), but if the commentary of the OECD can be used as context for interpretation, there is no good reason why the commentary of the UN should – mutatis mutandis – be regarded as fundamentally different. Potentially, this makes the UN model and its commentaries directly relevant for a Kenyan judge seeking to solve a domestic case in tax treaty interpretation.

To be continued.

***

Literature

I also have an (OECD-)critical reading list; additional suggestions are very welcome. (anna@artikel104.nl)

• Y. Brauner, Serenity Now! The (Not So) Inclusive Framework and the Multilateral Instrument, [2021].
  
  
• I. Burgers en I. Mosquera, Corporate Taxation and BEPS, Erasmus Law Review, 2017.
  
  
• A. Christians en L. van Apeldoorn, The OECD Inclusive Framework, Bulletin for International Taxation, April/May 2018.
  
  
• R. C. Christensen, Elite professionals in transnational tax governance, Global Networks 21, 2 (2021) 265–293.
  
  
• J. Frecknall-Hughes, Ethical Issues In The Use Of Tax Intermediaries, N. Hashimzade en Y. Epifantseva, The Routledge Companion to Tax Avoidance Research, Routlegde, 2018, p. 404-416.
  
  
• G. Garfias von Fürstenberg, Allocation of taxing rights in Tax Treaties between Developing and Developed countries: Re-thinking principles, Maastricht University, 2021.
  
  
• M. Hearson, Imposing Standards: The North-South Dimension to Global Tax Politics, Cornell University Press, Ithaca en London , 2021.
  
  
• L. Oats en G. Morris, Tax Avoidance, Power, and Politics, N. Hashimzade en Y. Epifantseva, The Routledge Companion to Tax Avoidance Research, Routlegde, 2018, p. 458- 471.
  
  
• A. Van de Vijver, Morality of Lobbying for Tax Benefits: A Kantian Perspective, Journal of Business Ethics, 9 October 2020.
  
  
• A. Waris, Developing Fiscal Legitimacy by Building State-Societal Trust in African Countries, Journal of Tax Administration Vol 4:2 2018.