Tax Treaty Overrides: A Comparative Study of the Monist and the Dualist Approaches

Abstract

This article involves a survey of the treaty practice in ten jurisdictions, namely, Canada, China, France, Germany, India, Japan, The Netherlands, Spain, the United Kingdom and the United States (alphabetically) to find out which theory (monism or dualism) has been adopted by each of these states to give effect to (tax) treaties in their legal systems and to find out further what is the effect, if any, of the choice of a theory adopted by a state on the status enjoyed by (tax) treaties in that state's legal system and consequently on the phenomenon of (tax) treaty override. With a view to appreciate the similarities and dissimilarities in the attitude and practice of these jurisdictions, the author studies both, the general treaty practice and the tax treaty practice for each of these ten jurisdictions, and categorizes, on the basis of information gathered, different aspects of treaty-making such as the power to make (tax) treaties, need for pre-ratification parliamentary approval, mode of receiving (tax) treaties into a state's legal system, status of (tax) treaties as compared to the Constitution and domestic (tax) statutes. It is observed that while some jurisdictions follow the theory of monism so that their tax treaties take direct effect internally without anything more, others are dualists and their tax treaties, although binding internationally, do not take effect internally until transformed by legislative action. Substantial space has been devoted to preparing an inventory of the instances of tax treaty overrides in each of the ten jurisdictions and the judicial response thereto with a view to find out the attitude of the domestic courts of these jurisdictions to situations of potential treaty overrides. The exercise undertaken by the author reveals that in some of the jurisdictions, the judicial approach is to uphold the precedence of tax treaties over domestic tax statutes, while in others, the judicial trend is to give effect to the most recent expression of the sovereign will on the basis of the later-in-time rule. In the end, the author undertakes a comparative analysis to report any perceivable difference in the approach of the monist countries from that of the dualist countries to the phenomenon of treaty override.

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