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The use of OECD commentaries as interpretative aids : The static/ambulatory-approaches debate considered from the perspective of international law

Hilling, Maria LU and Linderfalk, Ulf LU (2015) In Nordic Tax Journal 2015(1). p.34-59
Abstract
Since many years, international tax law experts debate the relevance of changes to OECD Commentaries for the purpose of the interpretation of previously concluded tax treaties. Although, generally, most experts seem averse to the idea of an ambulatory approach to the usage of OECD Commentaries, they are reluctant to exclude this idea altogether. Such a position raises an important issue of justification: When exactly should the ambulatory approach be taken? As argued in this essay, the proper answer to this question depends on the particular rule of interpretation justifying the usage of OECD Commentaries in particular cases. If Commentaries are used according to Article 32 of the VCLT as part of the circumstances of the conclusion of a... (More)
Since many years, international tax law experts debate the relevance of changes to OECD Commentaries for the purpose of the interpretation of previously concluded tax treaties. Although, generally, most experts seem averse to the idea of an ambulatory approach to the usage of OECD Commentaries, they are reluctant to exclude this idea altogether. Such a position raises an important issue of justification: When exactly should the ambulatory approach be taken? As argued in this essay, the proper answer to this question depends on the particular rule of interpretation justifying the usage of OECD Commentaries in particular cases. If Commentaries are used according to Article 32 of the VCLT as part of the circumstances of the conclusion of a tax treaty, then because of the very nature of this means of interpretation, a static approach would have to be taken. If, instead, Commentaries are used to determine the ordinary meaning of the terms of a tax treaty, or its object and purpose; or if Commentaries are used based on Article 31, paragraph 3(b) of the VCLT; then the VCLT confers on interpreters a discretion. This discretion is limited by the principle of good faith, which means that interpreters will have to continue searching for the intention of treaty parties. Although this search can be rationalized as the application of general factors, as argued in this article, no choices between a static or an ambulatory approach can be made other than relative to particular cases, based on an overall assessment taking all applicable factors into account. Readers should contrast this conclusion with the position of many international tax law experts, who argue that such choices can be dealt with conclusively by the adoption of some or other general principle. (Less)
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author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
fiscal law, public international law, finansrätt, folkrätt
in
Nordic Tax Journal
volume
2015
issue
1
pages
34 - 59
publisher
De Gruyter Open
ISSN
2246-1809
language
English
LU publication?
yes
id
8332d612-495b-4f81-a9ac-43be5b9d50b8 (old id 7696278)
alternative location
http://dx.doi.org/10.1515/ntaxj-2015-0003
date added to LUP
2015-08-03 13:22:07
date last changed
2016-10-11 08:37:57
@misc{8332d612-495b-4f81-a9ac-43be5b9d50b8,
  abstract     = {Since many years, international tax law experts debate the relevance of changes to OECD Commentaries for the purpose of the interpretation of previously concluded tax treaties. Although, generally, most experts seem averse to the idea of an ambulatory approach to the usage of OECD Commentaries, they are reluctant to exclude this idea altogether. Such a position raises an important issue of justification: When exactly should the ambulatory approach be taken? As argued in this essay, the proper answer to this question depends on the particular rule of interpretation justifying the usage of OECD Commentaries in particular cases. If Commentaries are used according to Article 32 of the VCLT as part of the circumstances of the conclusion of a tax treaty, then because of the very nature of this means of interpretation, a static approach would have to be taken. If, instead, Commentaries are used to determine the ordinary meaning of the terms of a tax treaty, or its object and purpose; or if Commentaries are used based on Article 31, paragraph 3(b) of the VCLT; then the VCLT confers on interpreters a discretion. This discretion is limited by the principle of good faith, which means that interpreters will have to continue searching for the intention of treaty parties. Although this search can be rationalized as the application of general factors, as argued in this article, no choices between a static or an ambulatory approach can be made other than relative to particular cases, based on an overall assessment taking all applicable factors into account. Readers should contrast this conclusion with the position of many international tax law experts, who argue that such choices can be dealt with conclusively by the adoption of some or other general principle.},
  author       = {Hilling, Maria and Linderfalk, Ulf},
  issn         = {2246-1809},
  keyword      = {fiscal law,public international law,finansrätt,folkrätt},
  language     = {eng},
  number       = {1},
  pages        = {34--59},
  publisher    = {ARRAY(0x38a5d10)},
  series       = {Nordic Tax Journal},
  title        = {The use of OECD commentaries as interpretative aids : The static/ambulatory-approaches debate considered from the perspective of international law},
  volume       = {2015},
  year         = {2015},
}