Thoughts on the Interpretation and Desirability of Tax Carve-Outs in Investment Treaties

Abstract This article examines how international investment tribunals have understood and applied exclusions for ‘taxation’ or ‘tax measures’ from the scope of investment treaties and discusses how treaties without a carve-out have been applied to tax-related disputes. The analysis finds that tax carve-outs are a harmful inconsistency in protecting foreign investment and that awards in favour of investors in tax-related claims have concerned State action that was either excessive or entirely avoidable. Adopting tax carve-outs is not aligned with fostering transparency and adherence to international human rights norms but rather undermines the legitimacy of the international tax system.

Authors

Publication Details

Journal
ICSID Review - Foreign Investment Law Journal
Published
2025-01-01
DOI
https://doi.org/10.1093/icsidreview/siaf009
Citations
2
Primary Topic
International Arbitration and Investment Law
Type
article
Field-Weighted Citation Impact
4.45
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article

Thoughts on the Interpretation and Desirability of Tax Carve-Outs in Investment Treaties

Edwin Vanderbruggen
2 citations
ICSID Review - Foreign Investment Law Journal
International Arbitration and Investment Law
4.45
article

Thoughts on the Interpretation and Desirability of Tax Carve-Outs in Investment Treaties

Edwin Vanderbruggen
article en
2 citations

Abstract

Abstract This article examines how international investment tribunals have understood and applied exclusions for ‘taxation’ or ‘tax measures’ from the scope of investment treaties and discusses how treaties without a carve-out have been applied to tax-related disputes. The analysis finds that tax carve-outs are a harmful inconsistency in protecting foreign investment and that awards in favour of investors in tax-related claims have concerned State action that was either excessive or entirely avoidable. Adopting tax carve-outs is not aligned with fostering transparency and adherence to international human rights norms but rather undermines the legitimacy of the international tax system.

ICSID Review - Foreign Investment Law JournalVol. 40(1)
Openalex Percentile: Top 7%
International Arbitration and Investment Law
4.45
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