OECD Arbitration in Tax Treaty Law

1. S. 594Introduction

Human rights are increasingly important in tax matters. They are subject to discussions in domestic courts and also in the jurisprudence of international courts, mainly the European Court of Human Rights (ECtHR). The important sources of human rights are the European Convention on Human Rights (ECHR or the Convention) and, recently at the European Union level, the Charter of Fundamental Rights of the European Union (the Charter). Among the various protections that are guaranteed by both documents, the right of enjoyment of property, the right to a fair trial, the right of privacy, prohibition of discrimination, and the right to an effective remedy are the most often referred to in case law dealing with tax law.

In the context of international tax law over the years, there has been a discussion of whether human rights are also applicable to arbitration; a growing number of scholars claim that there are a number of postulates that can be derived from human rights that apply to arbitration. The view can be contestable since, in contrast to domestic tax dispute resolution, arbitration represents a State-to-State type of dispute. That means the participation of a taxpayer ...