Arbitration as Institution of International Tax Dispute Resolution -supplementing or alternative to the Mutual Agreement Procedure―

The OECD revised its Model Tax Convention on Income and on Capital (“OECD Model Treaty”) to include a mandatory arbitration as a way to resolve international tax disputes in 2008 as part of the mutual agreement procedure, which is incorporated in the Article 25 of the OECD Model Treaty. In fact, the OECD has been working on a project to improve the resolution of tax treaty disputes for a number of years and the recent embracement of a mandatory arbitration is a direct result of such efforts. Arbitration has been rare in the field of international tax dispute resolution, which contrasts with the institution of commercial arbitration that is well developed and advanced. With ever increasing cross-border transactions and related tax disputes, the move by the OECD seems to be timely. This paper tries to examine the current status of the mutual agreement procedure in general and for Korea, with specific purpose of facilitating the discussion of arbitration in various communities such as academics, practitioners and the government. Mutual agreement procedure is highly confidential and is regarded to be the exclusive territory of sovereignty. Naturally, taxpayers may not be so pleased with the ways these mutual agreement procedures are handled by the sovereignties. As an alternative to mutual agreement procedure, the concept of international tax arbitration is discussed by introducing the history, development and analysis of key aspects. The Income Tax Treaty between the U.S. and Germany, which adopted mandatory arbitration recently, is explored and compared with the OECD Model Treaty. Of course, not all issues can be covered in this paper. For now, the topics on the meaning of ‘mandatory’, parties to arbitration in general, jurisdiction in terms of scope of determination, confidentiality in association with procedural transparency, and most importantly, the arbitration tribunal itself are examined. The institution of international tax arbitration is young and just began to attract attention as an alternative to or a part of the mutual agreement procedure recently. Some countries are implementing the arbitration in their tax treaties already. It is not a matter of accepting the arbitration per se but it is a matter of preparing ourselves in the world that is accepting arbitration as a viable solution to international tax disputes. It is hoped that this paper stimulates further study and discussion of international tax arbitration.