Objectifs

The course at a glance

• Holistic and advanced discussion of important topics traditionally at stake in international tax disputes and controversies with a focus on Swiss, OECD and UN international tax practice

• Role played by bilateral investment Treaties (BITs) and their interaction with domestic tax measures, double taxation conventions (DTCs) and avenues for dispute resolution

• Broader relation between international tax law and public international law in cross-border tax disputes (for example the rules relating to the Responsibility of States for Internationally Wrongful Acts)

Objectives of the course

This course builds on the “International Tax Policy” course of Prof. R.J. Danon (taught from September to November) and on the “International and European Tax Law (fundamentals)” course of Prof. V. Chand (taught during the Spring semester) and discusses at an advanced level selected important topics traditionally at stake in international tax disputes and controversies. The focus is on Swiss, OECD and UN international tax practice.

Moreover, the course takes a holistic approach and explores the relevance of certain non-tax instruments as well as other areas of public international law in cross-border tax disputes. Accordingly, the role played by bilateral investment Treaties (BITs) and their interaction with domestic tax measures, double taxation conventions (DTCs) and avenues for dispute resolution are discussed. Moreover, the broader framework of public international law governing the compliance by States with their international tax obligations is examined (for example the rules relating to the Responsibility of States for Internationally Wrongful Acts).

The approach followed by the course is casuistic in nature. Therefore, all issues presented will be illustrated by multiple case studies and leading decisions rendered by courts in Switzerland, in Europe and around the globe. Guest speakers such as representatives of tax administrations, international tax organisations, tax treaty negotiators, inhouse counsels are also invited to share their experience.

Contenus

Structure and content of the course

The course will be divided into the following blocks:

• Advanced discussion of objectives, negotiation, interpretation and application of double taxation conventions (DTCs), including the impact of the BEPS Multilateral Instrument (MLI). Comparaison and interaction with bilateral investment treaties (BITs).

• Access to tax treaty benefits (individuals and entities including classification/attribution conflicts); advanced discussion of treaty residence and permanent establishment exposure (including attribution of profits) in international tax disputes.

• Problem of improper use of DTCs (focus on dividends, interest, royalties, capital gains but also on employment income in the context of international hiring of labour). Comparison with treaty shopping under BITs.

• Relevance of non-discrimination, most favored nation clauses (MFNs), fair and equitable treatment standard etc contained in DTCs and/or BITs on international tax disputes

• Tax treaty override and abuse (“dodging”) by States and the consequences thereof. The discussion will also consider the broader consequences under international law (i.e. Responsibility of States for Internationally Wrongful Acts) and the relation with the standards laid down in other instruments (i.e. such as for example Bilateral Investment Treaties (BITs)

• Remedies available to resolve international tax disputes: mutual agreement procedure per se, optional mandatory arbitration and, within the European Union, Arbitration Convention and the recently adopted Directive on tax dispute resolution mechanisms. Impact of the work on the challenges raised by digitalisation on dispute resolution mechanisms. Relevance of Bilateral Investment Treaties (BITs) to resolve international tax disputes.

• Administrative assistance (Swiss, OECD and EU framework)

Références

All relevant materials relating to the course shall be available on Moodle

Evaluation

1ère tentative

Examen:

Ecrit 2h00 heures

Documentation:

Autorisée avec restrictions

Calculatrice:

Autorisée avec restrictions

Evaluation:

Examen organisé par la faculté de Droit

Rattrapage

Examen:

Ecrit 2h00 heures

Documentation:

Autorisée avec restrictions

Calculatrice:

Autorisée avec restrictions

Evaluation:

Examen organisé par la faculté de Droit