September/October 2017  
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Derivatives & Financial Instruments
This free e-mail service informs you about the contents of the forthcoming edition of Derivatives & Financial Instruments.

Issue No. 5 - 2017 of the Derivatives & Financial Instruments is now available online.

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Number 5 - 2017 contains the following:
Cross-Border Tax Dispute Resolution in the 21st century: A Comparative Study of Existing Bilateral and Multilateral Remedies
Sriram Govind and Laura Turcan
This article aims to provide a broad overview of the bilateral and multilateral options for dispute resolution available to investors in a cross-border tax dispute. The aim here is to discuss the potential alternatives to tax treaty dispute resolution and how the dispute resolution framework in tax treaties can learn from such procedures and be developed going forward.
Tax Controversies and Dispute Resolution under Tax Treaties: Insights from the Arbitration Sphere
Elizabeth Snodgrass
This article focuses on recent initiatives to embed arbitration as a mechanism for resolving tax controversies under income tax treaties. Drawing on the author’s experience as an arbitration lawyer, the article considers developments in the frameworks for arbitration under income tax treaties, including (i) the OECD Model, (ii) the EU Arbitration Convention and (iii) the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (the BEPS Multilateral Instrument). These frameworks are compared to existing (non-tax specific) arbitration frameworks, in order to evaluate the efficacy of arbitration as a mechanism for resolving tax controversies and identify where some lessons may be learned as the tax arbitration process is further developed and refined.
The Tax State Aid Investigations, and the Role of Economic and Financial Analysis
Nicole Robins
In August 2016, the European Commission announced its largest-ever aid recovery order, requiring Apple to repay EUR 13 billion as a result of its tax arrangements in Ireland. This landmark tax State aid decision followed aid recovery orders faced by Starbucks in the Netherlands, Fiat Finance and Trade in Luxembourg, and 35 other multinationals in Belgium under the “excess profit” scheme. As it has been reported that a large number of tax rulings are under review, companies’ tax arrangements face an unprecedented level of State aid scrutiny. This article provides an overview of the State aid framework and procedure, reviews the status of the ongoing tax State aid investigations, highlights the key economic issues raised by the Commission in the Apple case, and discusses how an economic and financial analysis can help companies mitigate future State aid risks, in light of the importance of ensuring that tax arrangements are State aid-compliant.
European Union
Council Directive on Double Taxation Dispute Resolution Mechanisms: “Resolving Companies’ Areas of Concern?”
Taco Wiertsema
Without effective dispute resolution mechanisms between Member States of the European Union, companies will face the increasing possibility of unresolved double taxation. This is in particular due to new BEPS Actions that will provide Member States with expanding taxation opportunities. This article discusses whether the new Council Directive on Double Taxation Dispute Resolution Mechanisms in the European Union will resolve the areas of concern that companies currently face in dispute resolution procedures between Member States under tax treaties and the EU Arbitration Convention.
BITs and Taxes
Jana Kubicová
This article studies bilateral investment treaties (BITs) and their application to taxation. The main focus is on the potential application of BITs in tax-related investor-state dispute resolution. It pays attention to the emerging issues that challenge the applicability of BITs in a tax-related investor-state dispute in the European Union.
WTO Appellate Body Report in Argentina – Financial Services: Further Clarity on Likeness Analyses in a GATS Context?
Marie Lamensch
The General Agreement on Trade in Services (GATS) is the first and only multilateral agreement to subject supply of services to international trading rules. The GATS is part of the World Trade Organization, including its dispute settlement structure. However, and surprisingly perhaps, there is little case law with respect to the key most-favoured-nation and national treatment GATS obligations. After a short summary of the GATS framework for financial services, this article discusses the recent Appellate Body report in the case Argentina – Financial services that provides clarifications (but also opens new questions) regarding the “likeness analysis” to be undertaken when assessing compliance with MFN and NT GATS obligations.
United States
Recent Developments in US Tax Enforcement
Brent Feller
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