International Tax Soft Law Instruments: The Futility of the Static v. Dynamic Interpretation Debate

Abstract

The purpose of this contribution is to examine whether certain non-binding interpretation instruments, such as the OECD Commentaries, should have a privileged value over other equally non-binding texts in the context of the interpretation process of double tax conventions (DTCs). It will be shown that the OECD Commentaries should only be favoured over other interpretation materials exclusively on the grounds of the quality of its arguments as the opposite would entail granting de facto a binding nature to this text, being that this outcome is unacceptable from the perspective of the very nature of this document and from a well-built interpretation theory applied to DTCs. This conclusion has far-reaching implications yet, specifically in the context of the so-called static versus ambulatory discussion on the use of the OECD Commentaries, the approach adopted in this contribution entails that the predetermination that derives from the use of the most recent version of the Commentaries or the version that was available at the moment a DTC was being negotiated should be dismissed. Instead, the version of the Commentaries that should prevail is the one containing the most adequate interpretative outcome in accordance with the possible meanings of the terminology of the rule being interpreted, its context, and its purpose. Otherwise, the said predetermination only leads to a shortcut in the reasoning process that the interpreter must conduct, potentially leading to undesired arbitrariness.

This paper was shortlisted for the 2020 7th Frans Vanistendael Award for International Tax Law, granted by the International Bureau of Fiscal Documentation. Find more information at: https://www.ibfd.org/Academic/IBFD-Frans-Vanistendael-Award-International-Tax-Law

Keywords: Double Tax Conventions, legal interpretation, soft law, OECD Commentaries

JEL Classification: H20, H87, F23, K33, K34