The current orthodoxy maintains courts are not required to compare all language texts of a plurilingual tax treaty but may rely on a single one for cases of 'routine interpretation'. This view is... Show moreThe current orthodoxy maintains courts are not required to compare all language texts of a plurilingual tax treaty but may rely on a single one for cases of 'routine interpretation'. This view is fundamentally flawed, in violation of the Vienna Convention on the Law of Treaties, and the source of treaty misapplication. This study aims to: (1) help diminish treaty misapplication through abandonment of the current orthodoxy; (2) show that sole reliance on prevailing texts is available as a pragmatic alternative in line with the Vienna Convention that reduces global resource costs of tax treaty interpretation and increases its overall consistency by eliminating unintended deviations caused by language idiosyncrasies; (3) provide policy recommendations how residual cases may be eliminated. To support this goals, this study seeks to provide conclusive arguments and useful data to policy makers, treaty negotiators, judges, practitioners, and other scholars. Its analysis of the final clauses in 3,844 tax treaties is intended to help both taxpayers and courts interpreting tax treaties in practice. The general arguments presented in this book are not limited to tax treaties, since similar issues play a role in the interpretation of other treaties, for example, in the field of foreign investment regulation. Show less
Castermans, A.G.; Graaff, R. de; Haentjens, M. 2016
This chapter critically examines the CESL from the viewpoint of its capability to provide legal certainty for commercial actors. This chapter’s analysis focuses on three important stages in the... Show moreThis chapter critically examines the CESL from the viewpoint of its capability to provide legal certainty for commercial actors. This chapter’s analysis focuses on three important stages in the life cycle of a contract, seen from a business perspective: the scope rules that determine whether the CESL applies to a contract (para. 5.2), the interpretation of entire agreement clauses (para. 5.3) and the legal consequences of a breach of contract (para. 5.4). The chapter concludes that, with a few notable exceptions, the CESL rules do not enable contracting parties to predict, with a sufficient degree of certainty, the legal consequences of entering into the contract. From a business perspective, the CESL rules are therefore not crafted well enough to serve as a blueprint for future legislation. Show less
The ECtHR needs to provide effective rights protection, but it also needs to set clear standards while showing deference to decisions made at the national level. Especially when socio-economic... Show moreThe ECtHR needs to provide effective rights protection, but it also needs to set clear standards while showing deference to decisions made at the national level. Especially when socio-economic issues are concerned, meeting these different demands is a challenging task. The thesis explores the possible use and added value of the notion of ‘core rights’ for the reasoning of the ECtHR in socio-economic cases. By means of a comparative study of the German Wesensgehaltsgarantie, the minimum core obligations related to the ICESCR, and the debate on the use of core rights for the protection of socio-economic rights under the South African Constitution, insights are gained on the possibilities and pitfalls inherent in this idea. On the basis thereof, a ‘core rights perspective’ is outlined that is tailored to the protection of socio-economic interests by the ECtHR. It is argued that this perspective allows the ECtHR to develop a principled approach to (positive) socio-economic claims that is characterised by a clear demarcation of the scope of the Convention and a focus on minimum guarantees. In this way the core rights perspective may help the ECtHR in leaving the necessary room for national laws and policies while ensuring robust socio-economic protection. Show less
The purpose of the thesis is to (i) single out and clarify the most common types of issues emerging in the interpretation of multilingual tax treaties (i.e. tax treaties authenticated in two or... Show moreThe purpose of the thesis is to (i) single out and clarify the most common types of issues emerging in the interpretation of multilingual tax treaties (i.e. tax treaties authenticated in two or more languages), and (ii) suggest how the interpreter should tackle and disentangle such issues under public international law, with a particular emphasis on the kinds of arguments he should use and the kinds of elements and items of evidence he should rely upon in order to support his construction of the treaty. In order to address such issues, the author has developed a normative (prescriptive) legal analysis based on modern linguistic and, more specifically, semantic theories. However, since the purpose of the study is to suggest how the interpreter should now tackle and disentangle those issues, the author has also carried out a positive (prescriptive) analysis, which highlights the generally accepted principles and rules of treaty interpretation, in order (i) to carve out from his (non-ideal) normative legal theory the results potentially conflicting with such generally accepted principles and rules and (ii) to show how his normative legal theory might be applied to solve interpretative issues in cases where no common solution has been reached yet. Show less
Fundamental rights provisions are known for their relatively vague and general formulation. As a result, judges dealing with these provisions are confronted with many and often controversial... Show moreFundamental rights provisions are known for their relatively vague and general formulation. As a result, judges dealing with these provisions are confronted with many and often controversial interpretative choices. These interpretative choices already present judges operating in a national context with difficulties, but that is even more so for European judges operating in a multilevel context. The European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) are often criticized for delivering judgments that contain debatable choices and do not offer sufficient insight into the reasons which have led the courts to make these choices. Especially in a multilevel context where the cooperation of national authorities plays an important role as regards the effectiveness of the European courts, it is important that interpretation methods and principles are used in a transparent manner so that the reasons that justify a specific interpretative choice are clear. This book analyses the use of a selected number of interpretation methods and principles in the fundamental rights case law of the ECtHR and the CJEU. The use of teleological, comparative, evolutive and autonomous interpretation by the ECtHR and the CJEU are elaborately discussed on the basis of both legal theoretical literature and case law. The legal theoretical analysis provides the basis for various relevant questions, hypotheses and (analytical) suggestions, that are further studied in the subsequent case law analysis. This leads to a thorough overview of the role of these interpretation methods and principles and the possibilities for improvement. Show less
