ELECTING YOUR FORUM: A CHECKLIST BEFORE APPROACHING AN INVESTMENT TRIBUNAL IN AN INTERNATIONAL TAX DISPUTE

With no overarching ‘international tax tribunal’, tax-payers are presented with three possible forums to resolve their tax disputes under treaties: domestic courts, the Mutual Agreement Procedure [“MAP”] under tax treaties, and investment tribunals. After having established that domestic courts are ill-equipped, and tax treaties are under- developed 1o grapple with such disputes, investment tribunals may be the best bet. However, electing a forum must always be a case-to-case determination. International tax: disputes present investment tribunals with a unique challenge of obtaining their Jurisdiction from Bilateral Investment Treaties, [“BIT"] but having to decide claims under a different substantive law, the tax: treaty. This gives rise to the twin-problem of having to align jurisdiction and admissibility at every step of the process. This note acts as a strategic guide for foreign tax-payers to assist them to pick the right forum. It presents a checklist of five considerations to analyse the appropriateness of a case in relation to the Jorum chosen. The recent decision in Lonestar v. Korea [“Lonestar”], coupled with other cases, is instructive with regard to how a case must be argued and pleaded. This note demonstrates how a small change in strategy can be the difference between the claim succeeding or not succeeding.

ELECTING YOUR FORUM- A CHECKLIST BEFORE APPROACHING AN INVESTMENT TRIBUNAL IN AN INTERNATI.

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