Study On The Arbitrability Of International Investment Tax Disputes

With a further activation of international investment, the international flow of capital which is under the various jurisdictions of tax sovereignties in different countries is becoming increasingly frequent. The disunity of the fiscal and taxation system leads the relationship of international taxation to an even more complicated situation. Meanwhile, the disagreement between the investors and the host-countries about the application and explanation of the tax issues in the International Investment Agreement results in the gradually increased disputes about the international investment tax. The international communities have carried on a long-time exploration in order to reasonably and effectively solve the disputes about the international investment tax. Thus Mutual Agreement Procedure comes into being under the circumstance of peace becoming the theme of the time and becomes an important means to solve the disputes about international investment tax nowadays. However, Mutual Agreement Procedure still has some inevitable and inherent defects which make it have certain restrictions on solving the disputes. Therefore, the international community starts to seek a new solution to these disputes. And under the joint efforts of international organizations and experts, arbitration is gradually brought into the international investment tax disputes settlement mechanism. However, the international investment tax arbitration mechanism is just a supervision system of Mutual Agreement Procedure, which cannot completely replace Mutual Agreement Procedure. In addition, the existing arbitration mechanism still cannot meet the needs of solving the disputes according to the international practices.International investment tax disputes have a set of associations with international tax disputes, while the international investment tax arbitration mechanism has been put into practice by ICSID. This thesis conducts its analysis on the arbitrability of the international investment tax disputes, and based on this analysis, the author comparatively analyses the different rules about the tax-related disputes arbitration mechanism both in international communities and China’s investment agreement, and meanwhile, the author suggests that China should carefully regulates the tax-related disputes in its tax provisions and dispute settlement clauses of China’s investment agreement, thereby to maintain the balance between the interests of the investors in China and the our country’s interests of national tax sovereignty.Chapter one briefly introduces the basic content of international investment and tax disputes including the scope and the two subjects of the international investment tax dispute. Then through comprehensively comparing the international investment tax dispute and the international tax disputes, the author summarizes the relations and difference between them.Chapter two mainly introduces the solutions to the international tax disputes from the aspects of domestic law procedures,diplomatic protection, mutual agreement procedure and arbitration and so on and specifically analyzes the range and conditions of various systems as well as their advantages and disadvantages.Chapter three discuss the investment agreement in terms of tax and dispute settlement provisions two tax related provisions in international investment agreements. Analysis of the different provisions of international legislation on tax dispute whether for investment agreements. Also discusses the investment agreement in the dispute settlement clause allowed in the jurisdiction of the arbitration tribunal, the arbitration of international investment disputes related to verification.Chapter four mainly probes into the arbitration system and practice of ICSID. It discusses about the jurisdiction of ICSID and then explains the necessary theoretical support for the possibilities that the international arbitration institutions can pose its jurisdiction on international investment tax disputes. Meanwhile, this chapter makes some necessary instructions about the international investment tax arbitration practices of North American Free Trade Agreement, UNCITRAL Arbitration Rules as well as many other international commercial arbitration institutions.Chapter five explores the necessity and feasibility of bringing arbitration clause into the related agreements of China. For our country, it is necessary to bring in arbitration clause in order to optimize the existing tax dispute settlement mechanism and our country has possessed the internal and external conditions for bringing in arbitration clause. And then the author puts forward some suggestions for the design of the tax-related arbitration clauses and dispute settlement clauses in China’s investment agreement.