Treaty Abuse, General International Law, and the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS: What Can Be Achieved by Applying the Multilateral Convention That Cannot Already Be Achieved by Applying General International Law?

The concept of treaty abuse, although being of great significance to the operation of international tax treaties, is by no means peculiar to this particular branch of law. A treaty abuse doctrine exists in general international law since long. As this paper argues, current work within the OECD, and especially the existence of the recently negotiated Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS, gives reason to reconsider this important doctrine. What can be achieved by applying the Multilateral Convention that cannot already be achieved by applying general international law? To what extent does the Multilateral Convention depart from the general treaty abuse doctrine? To what extent can the general treaty abuse doctrine be applied by domestic tax authorities and courts? This paper, by clarifying the general treaty abuse doctrine, takes an important first step towards obtaining an answer to these questions.