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Tax Matters in International Investment Arbitration: General Questions, Jurisdiction, Merits and Remedies

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Tax Matters in International Investment Arbitration: General Questions, Jurisdiction, Merits and Remedies

Author: Robert Danon; Andreas Ziegler; Sebastian Wuschka
Publisher: Kluwer Law International
ISBN: 9789403506975
Published In: June 2026
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

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In recent years, tax-related matters in investment treaty arbitration have received prominent attention. Following the 2020 award in Cairn Energy v. India, investment treaty cases involving an alleged violation of investors’ rights in taxation matters continue to be on the uprise. Therefore, arbitral tribunals are increasingly required to interpret tax carve-outs and to give content to investment treaty protection standards in a tax-related context. Further, the interaction between these standards and those shaping the international tax system has begun to surface in arbitral awards. At the policy level, the recent evolution has been equally intense. On the one hand, sophisticated tax carve-outs and filter mechanisms (sometimes with cross-references to the principles of the international tax system) continue to be included in investment agreements. On the other hand, the relation between investment arbitration and taxation matters has been a recent focus of the work of the UN Committee of Experts on International Cooperation in Tax Matters.

This book, which comprises 18 chapters written by distinguished authors of the international tax and investment law communities, brings together comprehensive in-depth research and practical guidance as well as policy recommendations on all aspects involving taxation matters in investment arbitration. The book also contains two introductory chapters presenting the latest evolution of the international tax system and the investment treaty regime. The chapters of the book explore notably the following issues and topics:

The interaction between the investment treaty regime and the international tax system at both the jurisdictional and merits phases of an investment arbitration.
Tax carve-outs and notification procedure, policy and arbitral practice related thereto.
All substantive investment treaty standards of protection relevant in tax-related disputes.
Issues involving remedies (compensation for damages and taxation of arbitral awards).
Empirical evolution of the investment treaty regime and the international tax system as well as latest UN tax policy developments concerning investment treaty protection.

The book is intended to serve as a comprehensive reference tool to those engaged in investment treaty disputes involving taxation matters. Moreover, the volume also aims at stimulating the discussion at the policy and scholarly level with respect to the coordination between the investment treaty regime and the international tax system.

Preface

Introduction: Taxation Matters and Investment Arbitration, Robert J. Danon, Sebastian Wuschka & Andreas R. Ziegler

Part I Investment Arbitration and Tax-Related Investment Disputes – General Matters

Chapter 1: Notion and Evolution of the International Tax System, Robert J. Danon & Guglielmo Maisto

Chapter 2: Origin and Evolution of the Investment Treaty Regime, Ursula Kriebaum

Chapter 3: The International Investment Treaty Regime and the International Tax System: The Jurisdictional Phase of an Investment Treaty Arbitration, Robert J. Danon

Chapter 4: The International Investment Treaty Regime and the International Tax System: The Merits Phase of an Investment Treaty Arbitration, Robert J. Danon

Chapter 5: The Relationship Between International Investment Treaties and Taxation: An Empirical Analysis of Their Interplay, Wolfgang Alschner & Guillaume François Larouche

Chapter 6: The UN Model Tax Convention’s Attempt to Override Investment Treaties: A Critical and Normative Assessment, Robert Danon & Adolfo Martín Jiménez

Part II Procedural Issues: Carve-Outs and Arbitrability of Tax Measures under IIAs

Chapter 7: Jurisdiction over Taxation Measures under International Investment Treaties: Tax Carve-Outs and Notification Procedures, Marinn Carlson & Z.J. Jennifer Lim

Chapter 8: From NAFTA to CETA and CUSMA: Foreign Investment and Taxation Measures in Canada’s Free Trade Agreements and Foreign Investment Protection Agreements, Mark A. Luz

Chapter 9: The Tax Carve-out Regime under the Energy Charter Treaty in Light of the Arbitral Jurisprudence, Cornel Marian & Samantha Rowe

Chapter 10: Beyond Notification: Enhancing Legitimacy of IIAs When Adjudicating Taxation Measures, Riyaz Dattu

Part III Substantive Questions: Tax Measures and IIA Standards of Treatment

Chapter 11: Fair and Equitable Treatment and Full Protection and Security Standards in Light of the Arbitral Jurisprudence on Tax Matters, Matthias Scherer

Chapter 12: The FET Standard and Tax-Related Investment Disputes: From Systemic Integration to “The Global Tax Standards” Approach—Practical Examples, Robert J. Danon

Chapter 13: Taxation and Expropriation, Michele Potestà & Scott Falls

Chapter 14: Non-discrimination, National Treatment and Taxation, Adolfo Martín Jiménez & Dr Michail Risvas

Chapter 15: Umbrella Clauses, Stabilization Clauses and Taxation, Trisha Mitra-Veber

Chapter 16: Navigating Tax-Related Disputes in Investment Contracts: Current Trends and Future Perspectives, Philippe Cavalieros & Karim Zein

Part IV Remedies: Taxation and Compensation

Chapter 17: Compensation for Damages in Relation to Tax Measures: An Overview, Sebastian Wuschka

Chapter 18: Full Compensation: Jurisprudence in Relation to Tax Gross-Up Arguments, Robin Rylander

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