Principles of interpretation of double tax treaties
Produced in partnership with David Klass of Hunton Andrews Kurth
Principles of interpretation of double tax treaties

The following Tax guidance note Produced in partnership with David Klass of Hunton Andrews Kurth provides comprehensive and up to date legal information covering:

  • Principles of interpretation of double tax treaties
  • Public international law rules on treaty interpretation
  • UK approach to interpretation of double tax treaties
  • OECD model convention approach to interpretation
  • The OECD commentary
  • Decisions of foreign courts
  • The effect of mutual agreement

Double tax treaties or conventions (DTTs) have a dual nature. They are:

  1. conventions between states (the contracting states), governed by international law, and

  2. part of the domestic law of contracting states

As a result, they are simultaneously subject to the rules of interpretation applicable to both international and domestic public law with the rules of international public law taking precedence in cases of dispute. Because DTTs have a dual nature, courts in each jurisdiction have developed their own approach to their interpretation.

States have different methods of incorporating international agreements into their domestic law:

  1. those that automatically incorporate a treaty into their domestic law so that as soon as it is signed and ratified the treaty becomes part of domestic legislation (the USA falls into this category), and

  2. those that require a form of legislative process to take place, incorporating the treaty into domestic law, before the treaty can be accepted as domestic law (the UK falls into this category)

This Practice Note examines the impact on the interpretation of DTTs of:

  1. public international law

  2. the UK courts’ approach to interpreting DTTs

  3. the OECD model convention approach to interpretation

  4. the OECD model commentary

  5. foreign court cases, and

  6. the mutual agreement procedure

Public international law rules on treaty interpretation

Articles 31–33 to the Vienna Convention on the Law of Treaties (1969) (the Vienna convention)