Not in Good Faith — A Critique of the Vienna Convention Rule of Interpretation Concerning its Application to Plurilingual (Tax) Treaties

British Tax Review, Issue 3, 2014

23 Pages Posted: 29 Jul 2014 Last revised: 6 Aug 2014

Date Written: July 27, 2014

Abstract

The prevailing view among scholars is that, based on paragraph 1 of Article 33 in combination with the presumption contained in paragraph 3 of Article 33 of the Vienna Convention, courts may in good faith rely on a single authenticated text for the purposes of routine interpretation, provided no difficulty arises in the form of an ambiguity or obscurity in the used text, there is no discrepancy between the authenticated texts and the interpretation of the text used does not lead to a result that is manifestly absurd or unreasonable. This article argues to the contrary, that is, that the interpretation of plurilingual treaties essentially requires a comparison of texts to give effect to the expressed intention of the contracting parties in good faith. The status quo sanctioned by the mainstream opinion is especially precarious in the case of tax treaties, fostering a wrongful practice that promotes divergence rather than uniformity of interpretation and may lead to fragmented jurisprudence. Because of the very nature of tax treaties, the presumption contained in paragraph 3 of Article 33 of the Vienna Convention should be considered rebutted by default for such treaties, and courts may not rely in good faith on one authenticated text alone.

This material was first published by Thomson Reuters (Professional) UK Limited and Contributors, Sweet & Maxwell (Law Publishers), in Richard Xenophon Resch, "Not in Good Faith — A Critique of the Vienna Convention Rule of Interpretation Concerning its Application to Plurilingual (Tax) Treaties", British Tax Review Issue 3, 2014, and is reproduced by agreement with the Publishers.

Keywords: international taxation, treaty interpretation, tax treaties, vienna convention, language, plurilingual, multilingual

JEL Classification: K33, K34

Suggested Citation

Resch, Richard Xenophon, Not in Good Faith — A Critique of the Vienna Convention Rule of Interpretation Concerning its Application to Plurilingual (Tax) Treaties (July 27, 2014). British Tax Review, Issue 3, 2014, Available at SSRN: https://ssrn.com/abstract=2472673

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