The Resource Dual role of the OECD commentaries - part 1

Dual role of the OECD commentaries - part 1

Label
Dual role of the OECD commentaries - part 1
Title
Dual role of the OECD commentaries - part 1
Creator
Subject
Language
eng
Summary
This comprehensive two-part article deals with the OECD Commentaries' relevance in tax treaty interpretation, particularly from the perspective of Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties. The purpose of the article is to establish the legal basis for the use of the OECD Commentaries in the interpretative process and, most importantly, to determine their relative weight in the interpretative undertaking. The main finding is that the relative value of the OECD Commentaries is not fixed but varies from case to case. The Commentaries' interpretative weight in each particular situation depends on whether it can be established that the common intention of the tax treaty parties was to copy the substance of the OECD Model in the relevant terms of their bilateral treaty. Accordingly, the Commentaries have a dual role to play. They may be 'a commentary' or 'the Commentary'. When assessing which version of the OECD Commentaries is the one that corresponds to the intended substance of the tax treaty, it is noteworthy that also the temporal element of treaty interpretation (static or dynamic) must be decided case-by-case. It may be that the common intention of the parties was to give the treaty terms a fixed meaning but they may as well have wanted their mutual treaty, or parts of it, to function as a 'living instrument'
Citation source
In: Intertax. - Alphen aan den Rijn. - Vol. 43 (2015),
http://library.link/vocab/creatorName
Nieminen, M
Geographic coverage
International
Language note
English
http://library.link/vocab/subjectName
  • OECD
  • OECD Model Commentaries
  • treaty interpretation
  • Vienna Convention on the Law of Treaties
Label
Dual role of the OECD commentaries - part 1
Instantiates
Publication
Label
Dual role of the OECD commentaries - part 1
Publication

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