Tax Treaty Negotiations: Myth and Reality

Abstract

Tax treaties are the building blocks of the international tax regime. There are currently over 3000 tax treaties that regulate the lion’s share of cross-border investment. They are largely fashioned after a single model reflecting an increasing convergence of international tax norms. Despite this convergence, and despite the passing of nearly a century from when the first modern tax treaties were formalized into a model, there remains a great many unanswered fundamental questions about their application, interpretation, and effectiveness. The importance of these questions was clearly exposed in the recent global displeasure with the norms of the international tax regime, displeasure which has eventually led to perhaps the single most extensive reform initiative for that regime, known as the BEPS project. Much effort and energy were spent on the study of tax treaties before, during, and in the aftermath of this project. Yet surprisingly, almost no effort has ever been made to study the actual making of tax treaties and their negotiation. This Article aims to begin filling this void with a pioneering survey of tax treaty negotiators that documents the process and launches a discourse over its implications for the interpretation and reform of international tax law around the world.