Justice, Equality and Tax Law

S. 541. Introduction

Non-discrimination articles are a ubiquitous feature among most tax conventions around the world. However, despite their pervasive presence and almost uniform wording across the globe, most scholars agree on the lack of clarity about the theoretical framework that lies behind non-discrimination articles, to the point that some describe their interpretation as “a most confusing area of the tax law”. Article 24 of the OECD Model Convention (“OECD MC”), contains a non-discrimination rule that addresses four different forms of tax discrimination which are not obviously connected by a central doctrine. This has led to describing the article as “an incoherent collection of fairly narrow clauses”.

Although these observations reflect a real problem in the way Article 24 is devised, there is reason to believe that such shortcomings should not prevent an effective and uniform interpretation and application of the different clauses of Article 24 OECD MC. Indeed, though the different clauses of Article 24 may not be the result of an “overarching theory”, it is beyond question that each of them is a non-discrimination rule and that their wording is not particularly obscure. From s...