Bilateral Investment Treaties: A Potential Legal Remedy in International Tax Disputes

Volume 9 No 3    /    Read Article

By Paul Kraan (Guest Authors)

Traditionally, international tax disputes tend to focus on provisions in treaties for the avoidance of double taxation. Typically, income tax treaties reduce withholding tax on various types of investment income, provide an increased threshold for imposing tax on business profits, and offer procedures to claim relief in the event of double taxation or the imposition of tax that is not in accordance with the terms of the relevant treaty. However, income tax treaties are not the only legal remedy available in an international tax dispute. Countries also conclude bilateral investment treaties (“B.I.T.’s”) with the aim of protecting and stimulating cross-border investment. In comparison to an income tax treaty, disputes under B.I.T.’s generally are settled by an independent arbitration panel. While a country may “dig in its heals” during the course of the arbitration process, it cannot follow a strategy of agreeing to disagree with its counterpart in the treaty partner country. Once an arbitration panel renders its decision against a government, the award can be converted into a judgment that is enforceable through seizure of assets owned by the government. Paul Kraan, a tax partner at Van Campen Liem in Amsterdam has authored the quintessential monograph on the use of a B.I.T. to obtain relief from confiscatory taxes or unfair treatment imposed by a signatory to an applicable B.I.T.   See more →