interpretation of treaties pdf

The best way to learn the art of treaty interpretation is to study the interpret-ative practice of international courts and tribunals. in tax treaty interpretation Michael Lang* and Florian Brugger† Abstract The role of the OECD Commentary in the interpretation of tax treaties is disputed. See Jacobs, Varieties of Approach to Treaty Interpretation: With Special Reference to the Draft Convention on the Law of the Treaties Before the Vienna Diplomatic Conference, 18 INT'L & CoMp. ISBN: 9780199277919. The book under review is a remarkable study on the interpretation of treaties written by Richard Gardiner. The author practised as a barrister, a Legal Advisor at the Foreign and Commonwealth Office, and taught at the Faculty of Law, University College, London. He observes that ‘ [t]his book is not about theory. Basic Rules. In order to achieve this, the status of tax treaties in South Africa will be discussed and recent decisions regarding such status will be considered. The most fundamental rule is articulated in Article 31(1): "A treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose." • Interpretation rule in DTC is lex specialis to interpretation rules in Art. This chapter examines whether the drafters of the VCLT drafted Articles 31-33 partly with national courts in mind, and how national courts in fact interpret treaties. The subsequent conduct of the state parties, intention of parties and their conception of the treaty. appreciate the role of Vienna Convention in application and interpretation of tax treaties; appreciate the basic principles of interpretation of tax treaties. Almost all tax treaties contain a general rule along the lines of article 3(2) of the OECD Model [4] and the UN Model [5] regarding the interpretation of undefined treaty terms. the case for textualism applied to treaties 834 A. Originalism and Treaty Interpretation 834 B. purposes and interpretation of treaties, rather than on their substantive provisions. Some general comments * BCom (Law) LLB (Stell) LLM (Taxation) (UCT). Even though the VCLT’s role in treaty interpretation has been studied extensively, its use in how national courts interpret international law has received far less attention. Treaties, makes a broad and general statement relating to the factors to be considered in the interpretation of treaties. This is indicative of the refusal to abide in the idea that there exist any maxims or clear-cut and mechanical rules to be applied in the interpretation of treaties." Concluded at Vienna on 23 May 1969 Authentic texts: English, French, Chinese, Russian and Spanish. According to the OECD Committee on Fiscal Affairs, changes to the OECD Commentary are normally applicable to the interpretation of tax treaties concluded before their adoption. INT’L L. 431 (2004) (arguing against the nationalist approach to Some, but not all, frameworks for treaty interpretation by domestic courts, advisors and policymakers have shifted in the post-BEPS era. relevance of BEPS materials for tax treaty interpretation depends on which interpretive community is engaged. In the practice of modern international law, disputes as to the meaning of specific treaty provisions are a frequent occurrence. “Belgian Linguistics (Merits)”, Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium”, Merits, European Court of Human Rights, Judgment of 23 July 1968, Publ. See also A. MCNAIR, THE LAW OF TREATIES (1961). Vienna Convention on the law of treaties (with annex). Purpose of tax treaties 5. L.Q. It is very rarely that the whole subject of treaty interpretation is dealt with in such detail in one study, and the achievement of the author is … Model Conventions 7. Contrastingly, a purpose-oriented approach is adopted in cases where the treaty in question to be interpreted is the constitutional document of an international organization. The term “law-making” treaty seems to be confusing, as it raises the question- Can treaties create law? The role of domestic courts in the application of international law is one of the most vividly debated issues in contemporary international legal doctrine. Treaty interpretation: A tale of two stories Aimée Craft 4/6/2011 This paper is a re-worked version of a paper prepared in the context of a Graduate Directed Studies Course on Indigenous Perspectives on Treaties with Professor John Borrows at the University of Victoria. In terms of recent debate, the notion of ‘systemic integration’ is also addressed. This is because, structurally speaking, treaties and contracts share many features. The subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions (Article 31(3) of Vienna Convention). To send this article to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. The book focuses on how domestic courts interpret and apply the OECD Commentary to OECD Model Tax Convention on Income and on Capital. 9 United States courts, for the U.S. Treaty Interpretation, 44 VA.J. Interpretation of Treaties - Volume 29 Issue S2. Treaty—good faith—ordinary meaning—terms—context—object and purpose I n t e rp re t at i o n u n d e r A rt i c le 3 1 o f t h e V i e n n a Co n v e n t i o n i s a p ro c e ss o f p ro g re ssi v e e n c i rc le me n t w h e re t h e i n t e rp re t e r st art s u n d e r t h e g e n e ral ru le w i t h (1 ) t h e Selected questions of treaty interpretation are analysed with reference to the historical and current Treaties constituting international organizations and treaties adopted within an international organization The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization. 8 A central goal of this Article, then, is to theorize an approach to the interpretation of tax treaties. Legal nature and effect of tax treaties 3. These principles are recognized as representing customary international law, for example by the International Law Commission (ILC).. MULTILATERAL Convention de Vienne sur le droit des traités … [ll One of the two approaches, that suggested by the International Law Commission, was (with minor 2016 . I.01 The Commentary to the OECD Model Tax Convention on Income and on Capital (hereinafter respectively the ‘Commentary’, and the ‘Model’ or ‘Convention’1 ) in its Introduction summarizes the evolution Tax treaties themselves also usually contain rules of interpretation. Treaties are agreements between sovereign nations. Senior Lecturer, Department of Mercantile Law, international treaties, which according to the Vienna Convention on the Law of Treaties (VCLT), must be interpreted within the broader context of international law. 2. 31 to 33 VCLT .-if bilateral interpretation rule is similar to Art. A few countries provide for filings by non-respondent treaty partners and authoritative interpretations, but these are extremely rare and concentrated almost exclusively among countries located in the Americas. In the wake of the transition to a democratic state, the country and region economy has prospered and its A survey of investment treaty … ECHR,Ser.A,Vol.6 The aim of this article is to consider two approaches to the problem of treaty interpretation, which came into conflict at the recent Vienna Conference on the law of treaties. Registered ex officio on 27 January 1980. Tax treaty vs domestic law 6. Law of Treaties was being prepared and other work on treaties was under way, and later, in Wellington, included the work which led to the report of the Law Commission on a new Interpretation Act. Adopting a global perspective, the book gives 1. Article 38(1)of the International Court of Justice’s statute It is the assumption underlying any such dispute that in a process of interpretation a distinction has to be made between the legally correct and incorrect interpretation result. identify the extrinsic aids to interpretation of a tax treaty. 318 (1969). Public Choice Theory and the Structural Case for Textualism in Statutory Interpretation 838 C. The Structural Argument Applied to Treaty Interpretation 841 D. Treaty interpretation is analysed in the wider context of the law of treaties, of which Gardiner has unparalleled knowledge. This Handbook, prepared by the Treaty Section of the United Nations Office of Legal Affairs, is a practical … A3_KYSAR.DOCX (DO NOT DELETE) 4/4/2016 12:09 PM 2016] INTERPRETING TAX TREATIES 1391 treaties is particularly sparse. 7 APPLICATION AND INTERPRETATION OF TAX TREATIES LEARNING OUTCOMES After studying this chapter, you would be able to identify the connecting factors of double taxation. pursuant to the Argentina-Chile General Treaty of Arbitration, 1902, Awardof18February1977,ILR,Vol.52,p.93etseq. In the matter of treaty interpretation, good faith demands the compliance of the following requirements: • if the treaty is clear, the meaning should not change under the pretext of respecting the spirit; • the used terms in the treaty must be assigned to their ordinary, natural meaning, and they should be interpreted taking into account the object and purpose of the treaty; • to a term it will be assigned a special … Contents The Interpretation of Tax Treaties and Authentic Languages Authentic Languages 15 Interpretation of Tax Treaties According to Article 33 of the VCLT 18 The Theoretical Problem 833 ii. Annexes to the Treaty 255 ARTICLE 194 Entry into Force, Ratification and Accession 255 ARTICLE 195 Depository 256 ANNEX I PROTOCOL ON TRANSIT TRADE AND TRANSIT FACILITIES PREAMBLE 257 THE HIGH CONTRACTING PARTIES 257 ARTICLE 1 Interpretation 257 ARTICLE 2 General Provisions 261 ARTICLE 3 Scope of Application 263 Articles 31-33 of the VCLT entail principles for interpreting conventions, treaties etc. Structure of a tax treaty 8. Tax treaty 4. Keywords: international treaties, means of interpretation, significance. The European Court of Human Rights (ECHR) has developed its own version of these rules of interpretation — a version that tracks the three traditional approaches to treaty interpretation: the textual approach, the subjective approach, and the teleological approach. It examines the principle of systemic integration, the presumption against conflict in international law, and how these principles call for BITs to be interpreted in harmony This chapter examines the meaning and function of principles of treaty interpretation in general international law. The Interpretation of Multilingual Treaties” [1996-1997] no. Interpretation protocols, Resolutions, Committee reports. The fundamental rule is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Interpretation of a tax treaty 9. 3 (2) MC, atreaty term may be interpreted by meaning of a term under domestic tax law concerning the taxes governed by the treaty … The six books under review contribute, in various ways, to the ‘database of treaty interpretation’ (Gardiner, at . However, the methodology of interpretation of international norms used by these courts remains II. This does Customary international law on treaty interpretation is partly and mostly codified in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT), which are discussed in their historical context. This chapter examines the meaning and function of principles of treaty interpretation in general international law. Customary international law on treaty interpretation is partly and mostly codified in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT), which are discussed in their historical context. A. While the contract paradigm of treaty interpretation may work well for “ordinary” treaties—that is, treaties that The primary international resource for judicial interpretation of foreign treaties or other instruments is the 1969 Vienna Convention on the Law of Treaties 2 – a treaty that the Supreme Court has cited on numerous occasions, as discussed below. The Law of Treaties Beyond the Vienna Conventio Applying the tax treaties 10. Currently, treaty interpretation is guided by Articles 31 through 33 of the Vienna Convention on the Law of Treaties (VCLT). Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT) set forth the basic rules of treaty interpretation. 1 INTRODUCTION We expect that the information that we receive from the particular provision of a treaty, from its preamble and annexes and from its object and purpose as well as from the preparatory work or from the practice in the application of a treaty to 3 Hastings International and Comparative Law Review 611-38, at 613. Evolving treaty landscape options for influencing treaty interpretation. The hierarchy of interpretation methods is arranged in terms of which method better reflects the original consent and agreement given by States to treaties. Interpretation of treaties. 11 . Interpretation of the Prairie Treaties NORMAN ZLOTKIN Respect for the unique position of Canada’s First Peoples—and more generally for the diversity of peoples and cultures making up the country—should be a fundamental characteristic of Canada’s civic ethos. Treaty interpretation has long drawn from the practice of contract interpretation. Article 19. ), Cf. 2 Preface to the Series: Introduction to the Laws of Iraq and Iraqi Kurdistan Iraq and Iraq's Kurdistan Region is at a compelling juncture in their histories. Treaty Interpretation. Judicial Interpretation of Tax Treaties is a detailed analytical guide to the interpretation of tax treaties at the national level. The Law Commission also gave major attention to the format of the statute book and styles of drafting and its recommendations were carried through into treaties and covers the definition, formation, interpretation, and application of treaties, and Gardiner’s Treaty Interpretation (KZ1304 .G37 2008) which provides in-depth information about treaty interpretation with a focus on using the Vienna Convention to interpret treaties. E. Cannizzaro (ed. Treaties and International Organizations Pub. For a recent overview of the various approaches to the interpretation of inter- interpretation of tax treaties entered into by South Africa. The most fundamental rule is articulated in Article 31 (1): "A treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose." Other provisions of Article 31 provide a specific definition of "context" and additional related guidance. 3. Treaty Interpretation in the Supreme Court 829 B. and publication of treaties in accordance with Article 102 of the Charter of the United Nations in order to ensure that treaties in force are in the public domain.

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