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The fragmentation of international investment and tax dispute settlement: A good idea?
Published online by Cambridge University Press: 22 February 2023
Abstract
The international investment and tax law regimes are undergoing a process of significant reforms that seek to address existing shortcomings of the mechanisms used for the resolution of investment and tax treaty disputes. These reforms show that policymakers are gradually adopting a fragmented approach towards dispute settlement in both fields, with the establishment of different and unco-ordinated mechanisms. This article argues that, instead of fragmenting investment and tax dispute settlement, states should consider establishing a more unified and coherent framework in order to more adequately mitigate the concerns raised in each field.
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- © The Author(s), 2023. Published by Cambridge University Press on behalf of The Foundation of the Leiden Journal of International Law in association with the Grotius Centre for International Law, Leiden University
Footnotes
*
A version of this article was presented at one of the virtual workshops on ‘Globalization and Digitalization – Interconnections between Taxation, Trade, and Investment’, jointly organized by the ERC Project GLOBTAXGOV and Leiden University in collaboration with the Council on Economic Policies, the Asia Pacific FDI Network, and the School of Law of the City University of Hong Kong. I am grateful for the questions and comments received there. More particularly, I wish to thank Professors Irma Mosquera Valderrama and Julien Chaisse for inviting me to participate in the workshop and for their comments and criticisms on earlier drafts of this article. Valuable comments and suggestions from Professors Lorenzo Gradoni and Werner Haslehner are also acknowledged. The views expressed and the errors or omissions made are the responsibility of the author alone.
References
1 For an overview on the history and proliferation of DTTs see M. Kobetsky, International Taxation of Permanent Establishments, Principles and Policy (2011). See also OECD, ‘Model Tax Convention on Income and on Capital: Condensed Version 2017’, with commentary, available at www.oecd.org/ctp/treaties/model-tax-convention-on-income-and-on-capital-condensed-version-20745419.htm. The OECD Model Tax Convention is a model for countries concluding DTTs.
2 J. Chaisse, ‘International Investment Law and Taxation: From Coexistence to Cooperation’, E15Initiative: International Centre for Trade and Sustainable Development (ICTSD) and World Economic Forum, 2016.
3 UNCTAD, World Investment Report 2022, International Tax Reforms and Sustainable Investment, UN Doc. UNCTAD/WIR/2022 (2022), available at www.unctad.org/system/files/official-document/wir2022_en.pdf.
4 See OECD Model Tax Convention, supra note 1, Art. 25, which states that ‘the taxpayer may present his matter to the competent authority of the contracting state of which he is a resident … [i]f the case is justified, the competent authority has to endeavor to settle the controversy’.
5 J. Chaisse, ‘Investor-State Arbitration in International Tax Dispute Resolution: A Cut above Dedicated Tax Dispute Resolution’, (2015) 35 Virginia Tax Review 149, at 168. See also H. J. Ault, ‘Improving the Resolution of International Tax Disputes’, (2005) 7 Florida Tax Review 137, at 139.
6 M. Lang and J. Owens (eds.), International Arbitration in Tax Matters (2016). See also A. P. Dourado, ‘Post-BEPS International Tax Arbitration’, (2019) 47 Intertax 671; P. K. Sidhu, ‘Is the Mutual Agreement Procedure Past Its “Best-Before Date” and Does the Future of Tax Dispute Resolution Lie in Mediation and Arbitration?’, (2014) 68 Bulletin for International Taxation 590.
7 OECD, ‘OECD Releases 2019 MAP Statistics and Calls for Stakeholder Input on the BEPS Action 14 Review on Tax Certainty Day’, available at www.oecd.org/tax/oecd-releases-2019-map-statistics-and-calls-for-stakeholder-input-on-the-beps-action-14-review-on-tax-certainty-day.htm.
8 Ibid.
9 For a discussion on taxpayers’ rights of participation see, generally, K. Perrou, ‘Taxpayer Rights and Taxpayer Participation in Procedures under the Dispute Resolution Directive’, (2019) 47 Intertax 715; D. De Carolis, ‘European Union – The EU Dispute Resolution Directive (2017/1852) and Fair Trial Protection under Article 47 of the EU Charter of Fundamental Rights’, (2018) 58 European Taxation 495; J. Kokott, ‘European Union – Taxpayers’ Rights’, (2020) 60 European Taxation 3.
10 W. Alschner, ‘The OECD Multilateral Tax Instrument: A Model for Reforming the International Investment Regime?’, (2019) 45(1) Brooklyn Journal of International Law 1, at 11.
11 OECD, ‘Addressing the Tax Challenges of the Digital Economy, OECD/G20 Base Erosion and Profit Shifting Project’, OECD Publishing, available at www.dx.doi.org/10.1787/9789264218789-en.
12 OECD, ‘Action Plan on Base Erosion and Profit Shifting’, OECD Publishing, available at www.dx.doi.org/10.1787/9789264202719-en.
13 Multilateral Convention To Implement Tax Treaty Related Measures To Prevent Base Erosion And Profit Shifting (MLI) entered into force on 1 July 2018, available at www.oecd.org/tax/treaties/multilateral-convention-to-implement-tax-treaty-related-measures-to-prevent-BEPS.pdf.
14 For a recent and comprehensive analysis of the MLI see S. A. Rocha and A. Christians (eds.), A Multilateral Convention for Tax: From Theory to Implementation (2021).
15 W. C. Haslehner, ‘A Multilateral Interpretation of the Multilateral Instrument (and Covered Tax Agreements)?’, (2020) 74(4/5) Bulletin for International Taxation 1, at 2.
16 Signatories to the MLI, status as of 28 July 2022, available at www.oecd.org/tax/treaties/beps-mli-signatories-and-parties.pdf.
17 For a discussion on international tax arbitration before the MLI see J. Arnold, ‘The Scope of Arbitration under Tax Treaties’, in Lang and Owens, supra note 6, at 111; Chaisse, supra note 5, at 168–70.
18 See OECD Model Tax Convention, supra note 1, Art. 25.
19 OECD, ‘Improving the Resolution of Tax Treaty Disputes’, 2007, available at www.oecd.org/ctp/dispute/38055311.pdf.
20 See OECD Model Tax Convention, supra note 1, Art. 25(5).
21 For a detailed analysis of the arbitration mechanisms adopted in the MLI see N. Bravo, ‘Mandatory Binding Arbitration in the BEPS Multilateral Instrument’, (2019) 47(8/9) Intertax 693.
22 See generally J. Pauwelyn, ‘Baseball Arbitration to Resolve International Law Disputes: Hit or Miss?’, (2018) 22 Florida Tax Review 40, at 46–7.
23 See supra note 16.
24 Council Directive (EU) 2017/1852 of 10 October 2017 on Tax Dispute Resolution Mechanisms in the European Union, available at www.eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32017L1852&from=EN.
25 For an analysis of the arbitration mechanisms adopted in the EU Dispute Resolution Directive see H. M. Pit, ‘The Changed Landscape of Tax Dispute Resolution Within the EU: Consideration of the Directive on Tax Dispute Resolution Mechanisms’, (2019) 47(8/9) Intertax 745.
26 See EU Dispute Resolution Directive, supra note 24, Art. 6.
27 Ibid., Art. 10.
28 Ibid.
29 D. R. Di Bella, ‘“Final-Offer Arbitration”: A Procedure to Save Time and Money?’, Kluwer Arbitration Blog, 25 January 2019, available at arbitrationblog.kluwerarbitration.com/2019/01/25/final-offer-arbitration-a-procedure-to-save-time-and-money/.
30 R. Petruzzi, P. Koch and L. Turcan, ‘Baseball Arbitration in Comparison to Other Types of Arbitration’, in Lang and Owens, supra note 6, at 139.
31 K. Gupta, ‘The Perceived Tension Between Party Autonomy and Expedited Procedure Under SIAC Arbitration Rules 2016’, (2019) American Review of International Arbitration, at 2.
32 French Civil Code of Procedure, Art. 1482. Original version of the provision: ‘La sentence arbitrale expose succinctement les prétentions respectives des parties et leurs moyens. Elle est motive.’
33 OGH, 28 September 2016, No. 18 OCg 3/16i. For a discussion of the case see S. Lukic and A. Grill, ‘Austrian Supreme Court Establishes New Standards as Regards the Decisive Underlying Reasoning of Arbitral Awards’, Kluwer Arbitration Blog, 24 December 2016, available at arbitrationblog.kluwerarbitration.com/2016/12/24/austrian-supreme-court-establishes-new-standards-as-regards-the-decisive-underlying-reasoning-of-arbitral-awards/.
34 H. Mooij, ‘Arbitration Institutes: An Issue Overlooked’, (2019) 47(8/9) Intertax 737, at 737.
35 See MLI, supra note 13, Art. 20(2)(c).
36 Ibid.
37 M. Hearson and T. N. Tucker, ‘“An Unacceptable Surrender of Fiscal Sovereignty”: The Neoliberal Turn to International Tax Arbitration’, (2021) Perspectives on Politics, at 1.
38 See Sidhu, supra note 6, at 604.
39 N. Q. Cruz, ‘International Tax Arbitration and the Sovereignty Objection: The South American Perspective’, (2008) 51 Tax Notes International 1, at 6.
40 W. F. G. Wijnen, ‘Some Thoughts on Convergence and Tax Treaty Interpretation’, (2013) 67(11) Bulletin for International Taxation 575, at 577.
41 K. Perrou, Taxpayer Participation in Tax Treaty Dispute Resolution (2014), summary.
42 H. D. Rosenbloom, ‘Derivative Benefits: Emerging US Treaty Policy’, (1994) 22(2) Intertax 83, at 83. For a comprehensive analysis on the practice of treaty shopping in the international tax system see L. De Broe, International Tax Planning and Prevention of Abuse (2008).
43 UNCTAD, ‘International Investment Agreements Navigator’, available at investmentpolicy.unctad.org/international-investment-agreements/. According to UNCTAD, 2,555 IIAs are in force today.
44 For a detailed analysis of the history and proliferation of investment treaties see J. W. Salacuse, The Law of Investment Treaties (2021).
45 See generally, on the asymmetry of investment treaties, P. Dumberry, ‘Suggestions for Incorporating Human Rights Obligations into BITs’, in K. Singh and B. Ilge (eds.), Rethinking Bilateral Investment Treaties: Critical Issues and Policy Choices (2016), 211.
46 For a discussion on the investment protection standards contained in investment treaties see J. Bonnitcha, Substantive Protection Under Investment Treaties: A Legal and Economic Analysis (2014).
47 For a recent study on costs and damages in ISDS see M. Hodgson, Y. Kryvoi and D. Hrčka, ‘2021 Empirical Study: Costs, Damages and Duration in Investor-State Arbitration’, British Institute of International and Comparative Law and Allen & Overy, June 2021.
48 J. Pohl, K. Mashigo and A. Nohen, ‘Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey’, OECD Working Papers on International Investment, 2012/02, OECD Publishing.
49 UNCTAD, ‘Facts on Investor–State Arbitrations In 2021: With a Special Focus on Tax-Related ISDS Cases’, IIA Issue Note, July 2022.
50 A. Reinisch and L. Malintoppi, ‘Methods of Dispute Resolution’, in P. Muchlinski, F. Ortino and C. Schreuer (eds.), The Oxford Handbook of International Investment Law (2008), 691, at 700–1.
51 See UNCTAD, supra note 49.
52 T. Dietz, M. Dotzauer and E. S. Cohen, ‘The Legitimacy Crisis of Investor-State Arbitration and the New EU Investment Court System’, (2019) 26 Review of International Political Economy 749; M. Waibel et al. (eds.), The Backlash against Investment Arbitration: Perceptions and Reality (2010); S. D. Franck, ‘The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions’, (2005) 73(4) Fordham Law Review 1521.
53 C. Giorgetti et al., ‘Independence and Impartiality of Adjudicators in Investment Dispute Settlement: Assessing Challenges and Reform Options’, (2020) 21 Journal of World Investment and Trade 441; J. Arato, C. Brown and F. Ortino, ‘Parsing and Managing Inconsistency in Investor-State Dispute Settlement’, (2020) 21 Journal of World Investment and Trade 336; C. Henckels, ‘Protecting Regulatory Autonomy through Greater Precision in Investment Treaties: The TPP, CETA, and TTIP’, (2016) 19 Journal of International Economic Law 27; J. A. Maupin, ‘Transparency in International Investment Law: The Good, the Bad, and the Murky’, in A. Bianchi and A. Peters (eds.), Transparency in International Law (2013), 142.
54 See Giorgetti et al., ibid., at 452. Note that several empirical studies have also recently focused on concerns related to independence and impartiality to assess whether the concerns were backed by data. See, for example, D. Behn, M. Langford and L. Létourneau-Tremblay, ‘Empirical Perspectives on Investment Arbitration: What Do We Know? Does It Matter?’, (2020) 21(2-3) Journal of World Investment and Trade, 188, at 240–9.
55 J. Paulsson, ‘Moral Hazard in International Dispute Resolution’, (2010) 25(2) ICSID Review – Foreign Investment Law Journal 339.
56 Empirical studies suggest that up to half of investment arbitration cases may be affected. See, e.g., M. Langford, D. Behn and R. Lie, ‘The Ethics and Empirics of Double Hatting’, (2017) 6(7) European Society of International Law Reflections.
57 See Arato, Brown and Ortino, supra note 53, at 337.
58 For a discussion of this case law see J. G. Olmedo, ‘Recalibrating the International Investment Regime through Narrowed Jurisdiction’, (2020) 69 International and Comparative Law Quarterly 301. For other cases of inconsistent interpretations see Arato, Brown and Ortino, supra note 53.
59 A. Roberts, ‘Investment Treaties: The Reform Matrix’, (2018) 112 American Journal of International Law Unbound 191.
60 UNCTAD, ‘UNCTAD’s Reform Package for the International Investment Regime’, 2018, available at investmentpolicy.unctad.org/publications/1190/unctad-s-reform-package-for-the-international-investment-regime-2018-edition-.
61 UNCITRAL Working Group III, ‘Possible Reform of Investor-State Dispute Settlement (ISDS)’, UN Doc. A/CN.9/WG.III/ WP.149, 36th Session 29 October - 2 November 2018, Vienna.
62 UNCITRAL Working Group III, ‘Report of Working Group III (Investor-State Dispute Settlement Reform) on the Work of Its Thirty-Seventh Session’, UN Doc. A/CN.9/970, 37th Session 1-5 April 2019, New York.
63 Sachs et al., ‘The UNCITRAL Working Group III Work Plan: Locking in a Broken System?’, Columbia Center on Sustainable Investment, 4 May 2021.
64 P. Ames, ‘ISDS: The Most Toxic Acronym in Europe’, Politico, 17 September 2015.
65 Slowakische Republik v. Achmea, Judgment of the Court (Grand Chamber) of 6 March 2018, C-284/16. The arbitration proceedings that led to a preliminary reference before the CJEU: Achmea BV v. The Slovak Republic, UNCITRAL, PCA Case No. 2008-13, Award of 7 December 2012. For a detailed analysis of the Achmea judgment see C. Eckes, ‘Some Reflections on Achmea’s Broader Consequences for Investment Arbitration’, (2019) 4(1) European Papers 79.
66 European Commission (Financial Stability, Financial Services and Capital Markets Union), Declaration of the Member States of 15 January 2019 on the legal consequences of the Achmea judgment and on investment protection.
67 L. Puccio and R. Harte, ‘From Arbitration to the Investment Court System (ICS): The Evolution of CETA Rules:’, European Parliamentary Research Service, 2018.
68 EU-Canada Comprehensive Trade and Economic Agreement (CETA), Art. 8.29.
69 On 30 April 2019, in light of the Achmea decision, the CJEU, ruling on a request made by the Kingdom of Belgium, issued an opinion holding that the ISDS investment court mechanism contained in CETA is compatible with EU law. See Opinion 1/17 pursuant to Art. 218(11) TFEU, CJEU, 30 April 2019. For a summary of the opinion see N. Lavranos, ‘Court of Justice of the EU Approves CETA Investment Court System’, Practical Law Arbitration Blog, 14 June 2019.
70 See EU-Singapore FTA, Art. 3.12; EU-Vietnam FTA, Art. 3.41; revised EU-Mexico FTA, Section C of the Chapter on Investment of the EU-Mexico Agreement in Principle.
71 For a more detailed description of the features of the ICS see J. W. Kim and L. M. Winnington-Ingram, ‘Investment Court System Under EU Trade and Investment Agreements: Addressing Criticisms of ISDS and Creating New Challenges’, (2021) 16(5) Global Trade and Customs Journal 181.
72 See CETA, supra note 68, Art. 8.27.
73 Ibid., Art. 8.30(1).
74 UNCITRAL Working Group III, ‘Appellate and Multilateral Court Mechanisms’, UN Doc. A/CN.9/WG.III/WP.185, Resumed 38th session 20-24 January 2020, Vienna. The Group examined the main questions for consideration regarding the establishment of the appellate mechanism, together with the possible forms that this reform option could take.
75 The IIA Mapping Project is a collaborative initiative between UNCTAD and universities worldwide to map the content of IIAs. The resulting database serves as a tool to understand trends in IIA drafting, assess the prevalence of different policy approaches and identify treaty examples, available at investmentpolicy.unctad.org/international-investment-agreements/iia-mapping.
76 United States–Mexico–Canada Agreement (USMCA), Art. 31.1.
77 Ibid., Art. 31.3.
78 Brazil-Malawi BIT, Art. 13.
79 Germany-Pakistan BIT, Art. 11.1.
80 Investment Agreement for the COMESA Common Investment Area, Art. 27.
81 For a more detailed examination of SSDS clauses see R. Polanco, The Return of the Home State to Investor-State Disputes: Bringing Back Diplomatic Protection? (2019), at 233.
82 A. Kulick, ‘State-State Investment Arbitration as a Means of Reassertion of Control. From Antagonism to Dialogue’, in A. Kulick (ed.), Reassertion of Control Over the Investment Treaty Regime (2017), 128, at 134.
83 J. G. Olmedo, ‘Claims by Dual Nationals under Investment Treaties: Are Investors Entitled to Sue Their Own States?’, (2017) 8(4) Journal of International Dispute Settlement 695, at 702; M. Paparinskis, ‘Investment Arbitration and the Law of Countermeasures’, (2008) 79(1) British Yearbook of International Law 264, at 284–5. Paparinskis explains that ‘[w]hile exclusion of diplomatic protection from all cases of investment arbitration is the policy that some States follow, it is a practice of only a small minority of States and therefore is not sufficiently widespread to create a customary rule’.
84 See IIA Mapping Project, supra note 75.
85 M. C. Porterfield, ‘Exhaustion of Local Remedies in Investor-State Dispute Settlement: An Idea whose Time Has Come?’, (2015) 41(2) Yale Journal of International Law 1; P. Peters, ‘Exhaustion of Local Remedies: Ignored in Most Bilateral Investment Treaties’, (1997) 44(2) Netherlands International Law Review 233.
86 Albania-Lithuania BIT, Art. 8.
87 Belarus-India BIT, Art. 15.
88 Ibid.
89 Kessedjian et al., ‘Mediation in Future Investor–State Dispute Settlement’, (2022) Journal of International Dispute Settlement.
90 UNCITRAL Working Group III, ‘Possible Reform of Investor-State Dispute Settlement (ISDS): Draft Provisions on Mediation’, UN Doc. A/CN.9/WG.III/WP.217, 43rd Session 5–16 September 2022, Vienna.
91 See Giorgetti et al., supra note 53, at 467.
92 Submission from the Government of Bahrain, 29 August 2019, UN Doc. A/CN.9/WG.III/WP 180, paras. 31–32.
93 M. Feldman, ‘Investment Arbitration Appellate Mechanism Options: Consistency, Accuracy, and Balance of Power’, (2017) 32(3) ICSID Review – Foreign Investment Law Journal 528.
94 G. Zarra, ‘The Issue of Incoherence in Investment Arbitration: Is There Need for a Systemic Reform?’, (2018) 17(1) Chinese Journal of International Law 137, at 177. See also C. J. Tams, ‘An Appealing Option? The Debate about an ICSID Appellate Structure’, (2007) 4(5) Transnational Dispute Management, at 24.
95 S. Schill and V. Djanic, ‘Wherefore Art Thou? Towards a Public Interest-Based Justification of International Investment Law’, (2018) 33(1) ICSID Review - Foreign Investment Law Journal 29.
96 N. Bernasconi-Osterwalder,. ‘State–state Dispute Settlement Clause in Investment Treaties’ IISD Best Practices Series, 2014, available at www.iisd.org/system/files/publications/best-practices-state-state-dispute-settlement-investment-treaties.pdf.
97 J. Kelsey, ‘UNCITRAL Working Group III: Promoting Alternatives to Investor–State Arbitration as ISDS Reform’, Investment Treaty News, 2 October 2019, available at www.iisd.org/itn/en/2019/10/02/uncitral-working-group-iii-promoting-alternatives-to-investor-state-arbitration-as-isds-reform-jane-kelsey/.
98 For an analysis on they different ways investors restructure their investment to access more favourable investment treaties see J. Baumgartner, Treaty Shopping in International Investment Law (2016).
99 M. O’Brien and K. Brooks, ‘Direct Taxation, Tax Treaties and IIAs: Mixed Objectives, Mixed Results’, in A. de Mestral and C. Lévesque (eds.), Improving International Investment Agreements (2013), 303, at 303.
100 Ibid., at 304.
101 Ibid.
102 See Chaisse, supra note 2, at 10–12; F. Ortino, ‘Substantive Provisions in IIAs and Future Treaty-Making: Addressing Three Challenges’, (2015) E15 Task Force on Investment Policy; P. Kraan ‘How B.I.T.s May Offer a Legal Remedy in International Tax Disputes’, (2019) 2(4) ITSG Global Tax Journal 3, at 6–9. M. Sztajerowska, ‘International Investment Agreements, Double-Taxation Treaties and Multinational Activity: The (Heterogeneous) Effects of Binding’, Working Paper 2021-44, at 33.
103 UNCTAD, ‘International Investment Agreements and their Implications for Tax Measures: What Tax Policymakers Need to Know: A Guide based on UNCTAD’s Investment Policy Framework for Sustainable Development’, UN Doc. UNCTAD/DIAE/PCB/INF/2021/3, at 4.
104 Ibid., at 16.
105 For an analysis on the different types of tax carve-out provisions see M. Davie, ‘Taxation-Based Investment Treaty Claims’, (2015) 6(1) Journal of International Dispute Settlement 202.
106 See UNCTAD, supra note 103, at 17.
107 See UNCTAD, supra note 49, at 5.
108 For a detailed discussion of the decisions rendered in tax-related ISDS claims see S. Tandon, ‘Issues and Challenges with Applying Investment Agreements to Tax Matters in the Context of India’s Experience’, (2022) Asia Pacific Law Review; P. Ranjan, ‘Investor-state Dispute Settlement and Tax Matters: Limitations on State’s Sovereign Right to Tax’, (2022) Asia Pacific Law Review; S. E. Rolland, ‘The Impact of Trade and Investment Treaties on Fiscal Resources and Taxation in Developing Countries’, (2020) 21(1) Chicago Journal of International Law 48.
109 Cairn Energy PLC and Cairn UK Holdings Limited v. The Republic of India, PCA Case No. 2016-7, Final Award of 21 December 2020.
110 India has been subject to other ISDS claims concerning the same retroactive taxation measures. In Vodafone v. India, under the Netherlands-India BIT, the Tribunal found that India’s retroactive taxation violated the FET standard and ordered India to cease demanding payment. An award is also reportedly pending in Vedanta Resources v. India, a case under the UK-India BIT that concerns India’s taxation of the same transaction as in Cairn Energy. Vedanta has reportedly announced in December 2021 that it has withdrawn its claim and requested the termination of the arbitration, following India’s adoption of legislation in 2021 that removed the retroactive taxation measures and provided for a refund of previously-paid taxes. See V. Djanic, ‘[Updated] India’s retroactive taxation disputes seemingly draw to a close, as Vedanta requests discontinuance of its treaty-based arbitration, while Vodafone also eyes settlement’, Investment Arbitration Reporter, 14 December 2021, available on subscription at www.iareporter.com/articles/indias-retroactive-taxation-disputes-seemingly-draw-to-a-close-as-vedanta-requests-discontinuance-of-its-treaty-based-arbitration-while-vodafone-also-eyes-settlement/.
111 See Cairn v. India, supra note 109, para. 764.
112 Ibid., para. 771.
113 Ibid., para. 773.
114 Ibid., para. 801.
115 Ibid., para. 767.
116 Ibid., paras. 803–806.
117 Ibid., para. 803(b).
118 Ibid., paras. 256–509.
119 India challenged the award before the courts of the seat of the arbitration, The Hague. In a decision of 31 December 2021, the Hague Court of Appeal decided to set aside the award given that Cairn UK did not appear in the proceedings, presumably in response to India’s decision to withdraw its retroactive tax bill. See L. Bohmer, ‘The Hague Court Sets Aside Cairn v. India Award based on Cairn’s Decision not to Object to the Set-Aside Application’, Investment Arbitration Reporter, 10 January 2022, available on subscription at www.iareporter.com/iar-search/?desktop-submit=Submit&iarsearch=The+Hague+Court+Sets+Aside+Cairn+v.+India+Award+based+on+Cairn%E2%80%99s+Decision+&iar_dt=5&cdfrom=&cdto=.
120 ‘Oil Firms use Secretive Court Hearing in Bid to Stop Vietnam Taxing their Profits’, Guardian, 15 August 2018, available at www.theguardian.com/global-development/2018/aug/15/oil-firms-use-secretive-court-hearing-in-bid-to-stop-vietnam-taxing-their-profits. For a more detailed summary of the case see H. Alencar and J. van Neck, ‘Capital Gains Taxes and Offshore Indirect Transfers’, Oxfam/Finance Uncovered, 2020, at 16–18.
121 See Alencar and van Neck, ibid., at 16. See also UK-Vietnam DTT, Art. 13(2)(a).
122 Ibid.
123 Ibid.; ConocoPhillips and Perenco v. Vietnam, UNCITRAL, 2017.
124 N. Mathiason, ‘Oil Major Settles Huge Capital Gains Tax Bill to Vietnam after Finance Uncovered Investigation’, Finance Uncovered, 20 January 2020, available at www.financeuncovered.org/stories/oil-major-pays-179m-capital-gains-tax-bill-to-vietnam-after-finance-uncovered-investigation.
125 Vincent J. Ryan, Schooner Capital LLC, and Atlantic Investment Partners LLC v. Republic of Poland, ICSID Case No. ARB(AF)/11/3, Award of 24 November 2015.
126 Ibid., para. 179.
127 Ibid., para. 209.
128 Ibid., para. 211.
129 Ibid., para. 284.
130 Ibid., para. 290.
131 Ibid., para. 294.
132 Ibid., para. 314.
133 Ibid., para. 313.
134 Ibid., para. 315.
135 Ibid.
136 Ibid., para. 316.
137 Ibid., para. 317.
138 Ibid., para. 319.
139 The investors have unsuccessfully tried to set aside the award at the seat of the arbitration, Paris. See D. Charlotin, ‘Claimants once Again Fail to Set Aside Treaty Award in Favour of Poland before French Courts’, Investment Arbitration Reporter, 31 May 2022, available on subscription at www-iareporter-com.ezproxy.mpi.lu/articles/claimants-once-again-fail-to-set-aside-treaty-award-in-favour-of-poland-before-french-courts/.
140 See UNCTAD, supra note 103, at 17. For a detailed analysis on the potential overlaps between IIAs and DTTs see M. Lang et al. (eds.), The Impact of Bilateral Investment Treaties on Taxation (2017).
141 See Chaisse, supra note 2, at 1.
142 See Rolland, supra note 108, at 70. See also T. W. Wälde and A. Kolo, ‘Investor-State Disputes: The Interface between Treaty-Based International Investment Protection and Fiscal Sovereignty’, (2007) 35 Intertax 424, at 434.
143 See notes 110 and 119, supra.
144 G. Turner, ‘Analysis: How Rich Oil Firms are Using Secretive Court to Fight Capital Gains Tax in Developing World’, Finance Uncovered, 20 August 2018, available at www.financeuncovered.org/stories/analysis-how-rich-oil-firms-are-using-secretive-court-to-fight-capital-gains-tax-in-developing-world.
145 For an analysis on the different types of tax carve-out provisions see Davie, supra note 105; Rolland, supra note 108.
146 India Model BIT 2016, Art. 2.4(ii).
147 Ibid.
148 P. Ranjan et al., ‘India’s Model Bilateral Investment Treaty: Is India Too Risk Averse?’, (2018) Brookings India, at 35.
149 Dutch Model BIT, Art. 10(3).
150 Chile-Hong Kong BIT 2016, Art. 14(4).
151 Ibid.
152 Ibid.
153 During its forty-second meeting, which was held in a hybrid format from 14–18 February 2022, the Working Group WGIII considered a draft text on a standing multilateral mechanism, available at uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/standing_multilateral_mechanism_-_selection_and_appointment_of_isds_tribunal_members_and_related_matters__0.pdf.
154 S. Schill and G. Vidigal, ‘Designing Investment Dispute Settlement à la Carte: Insights from Comparative Institutional Design Analysis’, (2020) 18(3) Law & Practice of International Courts and Tribunals 314, at 315.
155 European Commission, ‘Submission of the European Union and its Member States to UNCITRAL Working Group III’, UNCITRAL, UN Doc. No. A/CN.9/WG.III/WP.159/Add.1, 24 January 2019.
156 De Luca et al., ‘Responding to Incorrect ISDS Decision-Making: Policy Options’, Academic Forum on ISDS Concept Paper 2020/1, 21 January 2020, at 25.
157 Ibid.
158 UNCITRAL Working Group III, ‘Possible Reform of Investor-State Dispute Settlement (ISDS), Appellate and Multilateral Court Mechanisms’, UN Doc. A/CN.9/WG.III/WP.185, 38th Session 20–24 January 2020, Vienna, at 15.
159 UNCITRAL Working Group III, ‘Initial Draft of the Pertinent Elements of Selected Permanent International Courts and Tribunals’, available at uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/030222_pertinent_elements_of_selected_international_courts_final.pdf.
160 A. K. Bjorklund, ‘Arbitration, the World Trade Organization, and the Creation of a Multilateral Investment Court’, (2021) 37(2) Arbitration International 433, at 442.
161 See Schill and Vidigal, supra note 154, at 344.
162 M. Lang and M. Zuger (eds.), Settlement of Disputes in Tax Treaty Law (2002), at 529.