Understanding The BEPS Project And Other OECD Tax Initiatives Including The Inclusive Framework In The Context of Treaties and State Inequality
Keywords:
Unequal Treaty, CRS, FATCA, GLoBE Rules, Sovereignty, EqualityAbstract
In this article, the author seeks to establish a functioning, non-context-specific definition of an “unequal treaty” that takes into account underlying principles of state equality, the concept of treaties, and non-coercion, whilst sitting outside of any single historical moment, by reference to international customary law, the United Nations (UNs)’ resolutions of the General Assembly, and normative or moral concepts of coercion. Having established a definition, the author goes on to apply that definition to a number of developments and provisions that were put in place in the last decade, such as the Foreign Account Tax Compliance Act (FATCA), the Common Reporting Standard (CRS) and the outflows of the Organisation for Economic Co-operation and Development (OECD)’s Base Erosion and Profit Shifting (BEPS) project, setting these provisions within their political and procedural contexts so as to place them within the historical tradition of treaties between large and small powers. By applying this definition, the author concludes that some, but not all, of the recent tax-related provisions amount to “unequal treaties”.
In establishing a methodology with which to assess the inequality of treaties and applying that to the current tax relevant provisions, the author hopes to allow an informed discussion based not only on the objectives of large powers but also on an assessment of the characteristics of the methods by which the community of developed nations, as represented by the OECD, achieves its goals in the tax context.
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