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Vol 23 No 3 March/April 2018

Book of the Month

Cover of Scamell and Gasztowicz on Land Covenants

Scamell and Gasztowicz on Land Covenants

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Taxpayer Participation in Tax Treaty Dispute Resolution

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ISBN13: 9789087222253
Published: March 2014
Publisher: IBFD Publications BV
Country of Publication: The Netherlands
Format: Hardback
Price: £129.00

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When taxpayers go global, can disputes and dispute resolution remain local? Unilateral administrative measures and domestic judicial systems will continue to be used for the resolution of international tax disputes, but the inherent limits of one-sided solutions to multi-sided problems are bound to lead us to unsatisfactory results. Closer international cooperation becomes a sine qua non for the establishment of an international dispute resolution system that will possess all the fair trial guarantees of domestic judicial systems, but also cure its limited effectiveness, which does not extend beyond the geographical borders of one state.

The striking discrepancy between domestic judicial systems and the international one (MAP and arbitration) is the phenomenon of the absent taxpayer. This may be explained, but at the current level of development of international (economic) law and human rights law it can no longer be justified. This analysis develops on two axes: (i) the access of private parties to international law remedies from the perspective of public international law; and (ii) the access of private parties to international law remedies from a human rights law perspective.

A comparative analysis reveals that MAP as a form of diplomatic protection is not appropriate for international tax disputes. On the other hand, traditional public international law doctrine prohibiting the participation of private parties in international dispute resolution mechanisms has progressively shrunk. At the same time, prohibiting taxpayers direct access to MAP and arbitration procedures renders the tax treaty dispute resolution mechanism not compatible with the fair trial guarantees.

The study concludes that certain amendments to the current MAP and arbitration procedures are required: the proposed enhanced dispute resolution system should provide for (i) direct taxpayer participation; (ii) functional multiparty proceedings; and (iii) administrative procedures (MAP) followed by judicial ones (arbitration).

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