BEPS Action Plan: Action 15 – A multilateral instrument

The final action of the BEPS Action Plan is the development of a multilateral instrument that countries can use to implement various treaty-related measures developed in the course of the work. Following are commentary and links to content relating to action 15.

 

Updates

 

24 September 2014

The recently-released OECD paper now…

confirms that a multilateral instrument is both desirable and, from a tax and public international law perspective, technically feasible.

The report indicates that in January 2015, OECD and G20 countries will consider a draft mandate for an international conference for the negotiation of a multilateral convention.

There is also an indication that such an instrument could, in addition to updating bilateral treaties, be used for other things, such as to “express commitments” to implement certain domestic law measures or provide the basis for exchange of the country-by-country template, discussed above.

There is no discussion of the practicalities of such an instrument but the reference to the fact that “interested countries” may wish to develop a multilateral instrument perhaps hints at the difficulties of achieving a full consensus in this area.

 

26 May 2014

The OECD’s webcast today noted that international tax and legal experts had come to the conclusion that …

it is feasible and desirable to develop an instrument which will amend a large number of bilateral treaties at once.

Negotiation will be proposed through an International Conference (including developing countries on an equal footing) with ratification by national laws.

There is a need for a toolkit and framework, with work commencing early in 2015.

 

2 April 2014

An interesting point (raised in response to a question at the end of the OECD’s second update webcast) was that the OECD would …

push for mandatory arbitration to be included in the multilateral instrument which it proposes to put forward under Action 15.

 

2 September 2013

Even if it proves possible to develop an appropriate instrument, each country would have to go through a process of adopting it, and that …

may not be straightforward, particularly if in the country’s eyes it subjugates part of their sovereign right to tax.

The mechanism might be used to give effect to other actions, as a one-off exercise, or to provide for the need to counter other practices as they evolve.

Countries will then need to decide whether it’s something they might opt in to.

 

19 July 2013

This action point focuses on the need for a legal basis for jurisdictions to implement many of the other action points. If it were possible to develop an instrument …

which overrides existing treaties or alters a number of treaties at once, that would make it much easier for jurisdictions to implement necessary changes. Some helpful work has been done in this area before but there needs to be general confirmation that international law does allow it.

The action is to investigate whether it is feasible to develop an instrument of this nature and, ultimately, then to do so. There is a two-year time frame for this.



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