The Concept of Treaty Abuse: On the Exercise of Legal Discretion

38 Pages Posted: 18 Nov 2014

See all articles by Ulf Linderfalk

Ulf Linderfalk

Lund University - Faculty of Law

Date Written: November 17, 2014

Abstract

Although the usage of the concept of treaty abuse seems to be gradually increasing, especially in the spheres of international taxation and investment, it continues to puzzle international lawyers. This article suggests a workable general definition of the concept drawing on the idea of treaty abuse as an element of a conceptual field. As argued, treaty abuse refers to two kinds of situations. In the one case, the exercise of a discretion offered under a treaty renders its purpose ineffective. In the other, the exercise of a discretion offered under Articles 31-33 of the VCLT leads to a manifestly unfounded result.

Keywords: Treaty abuse, good faith, treaty interpretation, international law, principles

JEL Classification: K33

Suggested Citation

Linderfalk, Ulf, The Concept of Treaty Abuse: On the Exercise of Legal Discretion (November 17, 2014). Available at SSRN: https://ssrn.com/abstract=2526051 or http://dx.doi.org/10.2139/ssrn.2526051

Ulf Linderfalk (Contact Author)

Lund University - Faculty of Law ( email )

Box 207
Lund, SE-22100
Sweden

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