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The Oxford handbook of the history of international law

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The Oxford handbook of the history of international law

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• Introduction: Towards a global history of international law / Bardo Fassbender and Anne Peters
• Peoples and nations / Jörg Fisch
• States : rise and decline of the primary subjects of the international community / Antonio Cassese
• Peace treaties and the formation of international law / Randall Lesaffer
• Minorities and majorities / Janne E. Nijman
• Hostes humani generis : pirates, slavers, and other criminals / Joaquín Alcaide Fernández
• International arbitration and courts / Cornelis G. Roelofsen
• International organizations : between technology and democracy / Anne Peters and Simone Peter
• Peace movements, civil society, and the development of international law / Cecelia Lynch
• Territory and boundaries / Daniel-Erasmus Khan
• Cosmopolis and utopia / Dominique Gaurier
• Peace and war / Mary Ellen O'connell
• Religion and religious intervention / Antje von Ungern-Sternberg
• The protection of the individual in times of war and peace / Robert Kolb
• Trade, chartered companies, and mercantile associations / Koen Stapelbroek
• The sea / David J. Bederman
• Africa north of the Sahara and Arab countries / Fatiha Sahli and Abdelmalek El Ouazzani
• Africa / James Thuo Gathii
• Ottoman Empire / Umut Özsu
• China / Shin Kawashima
• Japan / Masaharu Yanagihara
• India / Bimal N. Patel
• North America : American exceptionalism in international law / Mark W. Janis
• Latin America / Jorge L. Esquirol
• The Caribbean / David S. Berry
• From the Late Middle Ages to the Peace of Westphalia / Martin Kintzinger
• From the Peace of Westphalia to the Congress of Vienna / Heinz Duchhardt
• From the Congress of Vienna to the Paris Peace Treaties of 1919 / Miloš Vec
• From the Paris Peace Treaties to the end of the Second World War / Peter Krüger
• China-Europe / Chi-Hua Tang
• Japan-Europe / Kinji Akashi
• India-Europe / Upendra Baxi
• Russia-Europe / Lauri Mälksoo
• North American Indigenous Peoples' encounters / Ken Coates
• Diplomacy / Arthur Eyffinger
• Discovery, conquest, and occupation of territory / Andrew Fitzmaurice
• Colonialism and domination / Matthew Craven
• Slavery / Seymour Drescher and Paul Finkelman
• The civilized and the uncivilized / Liliana Obregón
• A history of international law histories / Martti Koskenniemi
• Doctrine versus state practice / Anthony Carty
• The periodization of the history of international law / Oliver Diggelmann
• The reception of ancient legal thought in early modern international law / Kaius Tuori
• Eurocentrism in the history of international law / Arnulf Becker Lorca
• Identifying regions in the history of international law / Antony Anghie
• Muhammad al-Shaybānī (749/50-805) / Mashood A. Baderin
• Francisco de Vitoria (1483-1546) and Francisco Suárez (1548-1617) / Annabel Brett
• Alberico Gentili (1552-1608) / Merio Scattola
• Hugo Grotius (1583-1645) / Peter Haggenmacher
• Samuel Pufendorf (1632-1694) / Knud Haakonssen
• Christian Wolff (1679-1754) / Knud Haakonssen
• Cornelius van Bynkershoek (1673-1743) / Kinji Akashi
• Jean-Jacques Rosseau (1712-1778) / Georg Cavallar
• Emer de Vattel (1714-1767) / Emmanuelle Jouannet
• Immanuel Kant (1724-1804) / Pauline Kleingeld
• Georg Wilhelm Friedrich Hegel (1770-1831) / Armin von Bogdandy and Sergio Dellavalle
• Henry Wheaton (1785-1848) / Lydia H. Liu
• Francis Lieber (1798-1872) / Silja Vöneky
• Bertha von Suttner (1843-1914) / Simone Peter
• Friedrich Fromhold von Martens (Fyodor Fyodorovich Martens) (1845-1909) / Lauri Mälksoo
• Lassa Oppenheim (1858-1919) / Mathias Schmoeckel
• Max Huber (1874-1960) / Oliver Diggelmann
• Georges Scelle (1878-1961) / Oliver Diggelmann
• Hans Kelsen (1881-1973) / Bardo Fassbender
• Carl Schmitt (1888-1985) / Bardo Fassbender
• Hersch Lauterpacht (1897-1960) / Iain Scobbie.

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In This Article Expand or collapse the "in this article" section History of International Law, 1550–1700

Introduction, general overviews.

• Bibliographical Resources
• Textbooks and Handbooks
• Westphalia and Diplomatic History
• Classic Authors
• Spanish Classics
• Alberico Gentili (1552–1608)
• Hugo Grotius (1583–1645)
• Thematic Histories of International Law Doctrines
• Non-European History

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• Anthropology and International Law
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History of International Law, 1550–1700 by Ignacio De La Rasilla Del Moral LAST REVIEWED: 22 February 2018 LAST MODIFIED: 22 February 2018 DOI: 10.1093/obo/9780199796953-0036

Every epoch remakes the study of the history of international law in its own image. In the wake of a post–Cold War turn to the history of international law, the traditional interdisciplinary pollination of the history of international law, which blends international relations theory and its historical discourse, legal history, and the history of ideas and political thought, has been further enhanced by a growing diversity of standpoints. It has broken new thematic paths for scholarly exploration and has benefited from a new set of historiographical methodologies. However, the core of the classical historiography of international law still predominantly revolves around a mythical foundational moment for the creation of a Eurocentric international legal narrative. The contours of this classical historiography may be, summarily, examined by reference to two major poles. There is, on one hand, the culmination of the medieval natural law tradition rooted in Christian doctrines and interwoven with Roman law and Stoic foundations throughout the Middle Ages. This orientation attained its climax with the seconda scholastica embodied by the Salamanca school—its aprioristic and universal character accounting for the embedment of religion and morals in international relations at the dawn of the modern era in the Age of Discovery. There is, on the other hand, the dismantling of the medieval Respublica Christiana order erected upon the pillars of the papacy and the Holy Roman Empire alongside the parallel long emergence of the modern state (as superiorem non recognoscentes ) which gave rise to a Western state system of territorial limited sovereignty and an early modern type of the law of nations (or voluntary law). In the classical Eurocentric historiography, these two poles converge on the Peace of Westphalia, which is identified as the European geopolitical origin for a modern (or classical) law of nations circumscribed in its application to the rights and duties of states in their external relations, and thus one continually distancing itself—although far from ever entirely superseding it—on grounds of reasons of state from both the moral and religious elements embedded in the natural law tradition. The Peace of Westphalia allegedly marked the birthdate, after a long advent through the premodern era, of a post-imperial sovereignty-based ius publicum europaeum or ius gentium europaeum . In the late 19th century, as the ius publicum europaeum adopted its ultimate global dimension in the Age of Empire, the classical Western historiography began to be challenged for generating a Eurocentric and civilizational superior state-centered distortion, which led to the displacement of other narratives. The postcolonial and non-state-centered historiographical challenges have grown stronger as different waves of decolonization and transformations in the structure of international society have unfolded throughout the 20th century. They still permeate the study of the history of international law during the period 1550–1700 in the global academia of the early 21st century.

Most of the existing general overviews provide an overwhelming focus on European developments between 1550 and 1700. General overviews are susceptible of classification according to the two-tiered broad-ideal typology of international legal history put forward by Martti Koskenniemi (see Koskenniemi 2011 , cited under Non-European History ). Within the category of “realist” narratives “that concentrate on State power and geopolitics and view international law’s past in terms of the succession of apologies for State behaviour” and periodize accordingly, the most paradigmatic example is Grewe 2000 which includes 1550–1700 as falling squarely under the Spanish age (until 1659), and partly under the French age. The realist stress on diplomacy and treaty relations is particularly forceful in Nussbaum 1954 . While not renouncing the power-based geopolitical substratum that permeates these realist narratives, an intellectual turn of the screw to them is provided in Schmitt 2003 , which focuses on the changing shifts of the “nomos” of the Earth. On the other hand, “idealist” or doctrinal histories that “focus on lawyers and philosophers and view the past through debates about legal principles or institutions” tend also to revolve around the period 1550–1700, viewing it as the great historical caesura of the emergence of the modern state and its accompanying modern state system in Western Europe. The exact dating of the genesis of the early modern state, with candidates ranging from the 15th to the 16th century, or even back to the 13th century, has, in its turn, influenced the existing periodizations of the history of international law. These remain intermingled with a nationalistically and religiously tainted historiographical contest about the founding fathers of international law. This can be observed in the classification schemes that accompany a selected and highly scrutinized number of Classic Authors , beginning with Francisco de Vitoria for this period. Truyol y Serra 1995 provides a clear example of this evolving “idealist” history, which benefits from the author’s great familiarity with Spanish sources. Neff 2014 accompanies the history of international and global transformations from ancient times to the present. Jouannet 2012 , with its modern theoretically informed approach, builds around the dual notion of a liberal-welfarist law of nations, sets the modern origins of the discipline in the 18th century. In its turn, Laghmani 2004 is permeated by an anti-imperial ethos in its reexamination of the history of international law from the ius gentium imperial to a post-Westphalian ius publicum europaeum . A deeper bibliographical texture has been added to the field in Koskenniemi 2012 , which provides a unique history of international law histories.

Grewe, Wilhelm G. The Epochs of International Law . Translated and revised by Michael Byers. Berlin and New York: de Gruyter, 2000.

DOI: 10.1515/9783110902907

Representative of the epochal approach to international law and the division of the history of international law into stages of periodical development coincidental with the predominance of specific hegemonic powers. Monumental and greatly influential, this is a great starting point for students of the history of international law to cut their teeth on. Originally published in German in 1984.

Jouannet, Emmanuelle. The Liberal-Welfarist Law of Nations: A History of International Law . Translated by Christopher Sutcliffe. Cambridge, UK: Cambridge University Press, 2012.

DOI: 10.1017/CBO9781139093583

A suggestive historically informed departure from traditional approaches that places the emergence of the international law in the 18th century. A modern inquiry into what the author portrays as the dual liberal-welfarist structural normative framework underlying international law which extends up to present times.

Koskenniemi, Martti. “A History of International Law Histories.” In The Handbook of the History of International Law . Edited by Bardo Fassbender and Anne Peters, 943–971. Oxford: Oxford University Press, 2012.

The most updated and well-grounded bibliographical essay on the history of international law from the standpoint of post–Cold War historiographical developments. Simply a must-read because of its seminal character and philosophical acumen.

Laghmani, Slim. Histoire du droit des gens: Du jus gentium imperial au jus publicum europaeum . Paris: Pedone, 2004.

An inquiry in the formative period of the history of international law which is oriented to examine the interdependence that exists between shifts in international law and both the evolution of the relationships between actors and the evolving nature of those actors through history.

Neff, Stephen. Justice among Nations: A History of International Law . Cambridge, MA: Harvard University Press, 2014.

Combines historical detail on major events and turning points throughout the history of international law with particular analytical attention to the intellectual evolution of the major schools of thought within the discipline over time. A new referential work in the field.

Nussbaum, Arthur. A Concise History of the Law of Nations . 2d enlarged ed. New York: Macmillan, 1954.

An example of the apologetic strand of international legal history that focuses on diplomacy and treaty relations. The Spanish translation (1949) contains long additions on the history of the Hispanic doctrine, which were written during the apogee of National Catholicism in Spain. Also available in German (1960).

Schmitt, Carl. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. Translated and introduced by G. L. Ulmen. New York: Telos, 2003.

Originally published in 1950 (2d ed. 1974) in German, and translated into English in 2003, Schmitt’s lucidly polemical work has regained new prominence thanks to extensive scholarly commentary in the post-9/11 literature of international law and international relations. Available annotated translations also exist in Spanish (edited by Monereo, 2002), Italian (edited by Volpi, 2003) and French (edited by Haggenmacher, 2008).

Truyol y Serra, Antonio. Histoire du droit international public . Paris: Economica, 1995.

Presents an accessible and informative universalist approach to the history of international law, influenced by the sociologist axiom ibi societas inter potestates, ibi ius gentium , which transcends the Eurocentric framework of the Westphalian state-centered narrative. Although it was originally published in French, there is a Spanish edition (1998).

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The Oxford Handbook of the Theory of International Law

Edited by anne orford, florian hoffmann.

This book provides a guide to the major thinkers, concepts, approaches, and debates that have shaped contemporary international legal theory. The book explores key questions and debates in international legal theory, offers new intellectual histories for the discipline, and provides fresh interpretations of significant historical figures, texts, and theoretical approaches. It considers many issues from the field of international legal theory, and provides a guide to the main themes and debates that have driven theoretical work in international law. The text features an introductory chapter (Theorizing International Law) followed by forty-eight chapters which aim to reflect the richness and diversity of this dynamic field. The book is divided into four parts organized around four themes: histories (Part I), approaches (Part II), doctrines and regimes (Part III), and debates (Part IV). The chapters in Part I, introduce some of the key theories and thinkers that are perceived to have provided the foundations of international legal theory and aim to create a methodological awareness of the historical dimension of that theory. The chapters in Part II reflect some of the different ways of categorizing approaches to the theory field. The chapters in Part III provide an overview of theoretical discussions relating to core doctrines and areas of contemporary international law whilst those in Part IV present some of the most existential and essential questions informing the discipline’s current state and likely future.

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Affiliations are at time of print publication..

Anne Orford, editor

Florian Hoffmann, editor

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• Acknowledgements
• Arbitration Commission of the Peace Conference on Yugoslavia
• Eritrea-Ethiopia Claims Commission
• European Court of Human Rights (ECtHR)
• International Arbitral Tribunals
• International Centre for Settlement of Investment Disputes (ICSID)
• International Court of Justice (ICJ)
• International Criminal Court (ICC)
• International Criminal Tribunal for the former Yugoslavia (ICTY)
• Permanent Court of International Justice (PCIJ)
• World Trade Organization (WTO)
• Netherlands
• United Kingdom
• United States
• International Instruments
• International Law Commission Articles
• European Union Regulations
• Notes on Contributors
• 1 The Practice of Theorizing about International Law
• 2 The Challenges of the Turn to Theory
• 3 Ways of Theorizing International Law
• 4 Conclusion
• Preliminary Material
• 1 Introduction
• 2 Turning to History
• 3 The Neuzeit of Modernity
• 4 The Historiography of ‘Modern’ International Law
• 5 Conclusion
• 2 Roman Antiquity (Seventh Century bce–Sixth Century ce)
• 3 The Late Middle Ages (Eleventh to Fifteenth Centuries)
• 4 The Early Modern Age (Sixteenth to Eighteenth Centuries)
• 5 The Modern and Post-Modern Ages (Nineteenth to Twentieth Centuries)
• 2 Frame: The Natural Reason of Statehood
• 3 Routines: Operating the State-Machine
• 4 Transformation of Natural Law I: Into Economics
• 5 Transformation of Natural Law II: Into Philosophy
• 6 Transformation of Natural Law III: Into Diplomacy
• 7 Conclusion
• 2 Grotius’ Life and Times
• 3 Grotius’ Nachleben in the Low Countries
• 4 The 1899 Hague Peace Conference
• 5 A Dutch-American Party
• 6 How to Interpret the Grotius Commemoration of 4 July 1899
• 7 Grotius the Anti-Hero
• 2.1 Van Vollenhoven’s Critique of Vattel’s Doctrine
• 2.2 The Return to Grotius’ Law of Nations
• 3.1 The Logic of Vattel’s Doctrine
• 3.2 Critical Review of Van Vollenhoven’s Objections
• 2 Topoi of Extraterritoriality
• 3 Exceptional Jurisprudence
• 4 The Circulation of ‘Semi-Civilization’
• 2 Law in the Age of the World Picture
• 3 Eurocentric Sovereignty
• 4 Sinocentric Sovereignty
• 5 The Disenchantment of Sinocentric Sovereignty
• 6 China in Biblical Time and Space
• 7 International Law at the End of the Day
• 1 Theorizing International Law
• 2 The Imperialism of Theory
• 3 Decolonization and the Challenge to International Law
• 4 Towards the Present
• 5 Colonial Continuities
• 6 Imperialism and the Future
• 7 Conclusions
• 2 Lassa Oppenheim and the Future of International Law
• 3 The Immanent Universalism of the Austrians
• 4 Economic Early Twentieth-Century Positivism: Concluding Thoughts
• 2.1 The Quest for Objectivity
• 2.2 The Cosmopolitan Project
• 2.3 The Methodological Toolkit
• 2.4 The Critique of German Staatswillenspositivismus and the Grundnorm of International Law
• 3 The Limits of Objectivity
• 4 The Reception of Kelsen’s International Law Theory in German International Law Scholarship after the War
• 5 Kelsen’s Contribution to International Legal Theory: The Empty Universal Legal Form
• 2 Carl Schmitt, Liberalism, and International Law
• 3.1 Martti Koskenniemi
• 3.2 Eric Posner and Adrian Vermeule
• 3.3 Paul Kahn
• 3.4 Nehal Bhuta
• 2 The Jewish Question
• 3 Minority Treaties
• 4 The Right to Have Rights
• 5 Crimes Against Humanity
• 6 Conclusion
• 2 Russia as Part of ‘the’ (European) Civilization: International Legal Theory during the Late Tsarist Period
• 3 Key Features of International Legal Theory in the USSR
• 4 International Legal Theory in Post-Soviet Russia
• 5 The Impact of Civilizational Thinking on Contemporary Russian Theory of International Law
• 2.1 Vitoria through Grotius
• 2.2 Enlightenment Liberalism and the Law of Nature
• 2.3 The Contemporary Turn
• 3 Linear and Dialectical Dimensions
• 2.1 Base, Superstructure, and Historical Materialism
• 2.2 The Legal Theory of Marx and Engels
• 3 Marxist Theories of Imperialism
• 4.1 The Commodity-form Theory
• 4.2 Ideology Critique
• 4.3 International Law and the Third World
• 5 Conclusion: So What? (is to be Done)?
• 2 The Realistic Point of View
• 3 Legal realism
• 4 Realism about international law
• 2 The Contours of Constructivism
• 3 Radical Constructivism and the Study of International Law
• 4.1 The Acceleration of Legal Practices: From Norms to Risk?
• 4.2 Expertise between Evidence and Intelligence
• 2 Laws and Arms
• 3 Lex insulæ
• 4 Œconomic and emblematic images
• 2.1 The Origins
• 2.2 The Aim, Scope, and Standards
• 2.3.1 Radical Scepticism
• 2.3.2 Moderate Scepticism
• 2.4.1 Thinking Normatively about International Law
• 2.4.2 Conceptualizing the Legitimacy of International Law
• 2.4.3 Isolating the Legality of International Law
• 3.1 The Meta-Theoretical Turn
• 3.2 A Legal Philosophy of International Law
• 3.3 The Case in Point: The Philosophy of International Human Rights Law
• 2 Positivism and Formalism
• 3 Does International Equal ‘Classical’ Legal Positivism?
• 4.1 Jean d’Aspremont’s Neo-Hartian International Legal Positivism
• 4.2 Sociological Hartianism Comes Close to Ross’ Legal Realism
• 4.3 Sociological Hartianism is Less Responsive to Anti-Realist Critique
• 2 Conceptualism and Epistemic Structure of New Haven’s Jurisprudence
• 3 Conceptualism and Behaviouralism
• 4.1 The Analytical Function of Policy in New Haven’s Jurisprudence
• 4.2.1 Interpretation of International Agreements
• 4.2.2 Complementarity and Ambiguity of Rules
• 4.2.3 Implicit and Explicit Reactions to Policy Conceptualism
• 1 Introduction to the Field
• 2 Critiques and Limits
• 3 Conclusion: A Way Forward?
• 2 Significance
• 5 The Exile of Inclusion
• 2 A Framework for the International
• 3 The Categorical Imperative and Liberal Cosmopolitanism
• 4 The ‘Pacific Federation’ and Contractual Cosmopolitanism
• 5 Innate cosmopolitanism and cosmopolitan hospitality
• 2.1 Administration
• 2.3 Justification
• 3 GAL as a Global Terrain for Deliberative Democracy?
• 4.1 Subservience to Structure
• 4.2 Passive Acquiescence to Substantive Norms
• 4.3 Struggles to Align Multiple Systems of Law and Concepts of Representation
• 4.4 The Sprawl of Administration
• 5 Democratic Striving in Global Administrative Lawyering
• 2 From Theories of Substantive Validity to a Rule-Based International Law: The Rise of the Modern Theory of Sources
• 3.1 Reformism
• 3.2 Abolitionism
• 3.3 Rationale for Discontent
• 4.1 A Dynamic Theory of Sources of International Law
• 4.2 Moving Away from Voluntarism and State-Centrism
• 4.3 The Theory of Sources as Tradition and Practice Rather Than a Set of Rules
• 5 Concluding Remarks: Sources and the Fantasy of a Displacement of Politics
• 2 End State
• 3 Material/Abstract
• 4 Fragmentation/Unity
• 2 The Doctrines of Recognition and International Personality in Historical Perspective
• 3 Contemporary Theories of Recognition and International Personality
• 2 Jurisdiction in Public International Law
• 3 Jurisdiction in Human Rights Law
• 4 The Concept of Jurisdiction and Kerygma
• 5 Developments from Early Modern International Law
• 6 Jurisdiction as the Call of Conscience
• 2 A Very Brief History
• 3 Functionalism in Brief
• 4 Functionalism Evaluated
• 5 The Broader Academic Setting
• 6 To Conclude
• 2 Soliciting the Corporation in International Law
• 3.1 Para-individualism
• 3.2 Para-Statism
• 3.3 Para-institutionalism
• 3.4 Theorizing Corporate Analogues
• 4.1 International Investment Law
• 4.2 Business and Human Rights
• 2 The Practice of Making Legal Justifications
• 3 The Significance of Legal Justifications
• 4 Assumptions for Force and Intervention
• 5 Purposes for Force and Intervention
• 1 Human Rights Pragmatism?
• 2 Pragmatism as (Post-)Foundationalism
• 3 Pragmatism as Empowerment
• 4 Pragmatism as Pluralist Possibility
• 5 Pragmatism as Refusal?
• 2.1 Freedom, or the Lack of Conscious Attention to Economic Ordering
• 2.2 The Fragmentation of International Law
• 2.3 Free Trade and the Battle for the State
• 2.4 International Law as Routine: Embedding Neoliberalism
• 3.1 Around 1783: International Law and Revolution
• 3.2 Free Trade and the Science of the Legislator
• 3.3 Malthus and the Principle of Population
• 3.4 The Corn Laws and the Free Trade State
• 3.5 Free Trade, Famine, and Colonial Administration
• 3.6 Force and Free Trade
• 4.1 International Economic Disintegration and ‘Peaceful Change’
• 4.2 International Liberalism Versus State Planning
• 4.3 Negotiating the GATT
• 4.4 The Haberler Report: Free Trade and the Trojan Horse of Development
• 4.5 Trade Rounds and the Telos of the Free Trade Project
• 2 Factual Theories in International Criminal Law
• 3 Operational Theories in International Criminal Law
• 4 Foundational Theories in International Criminal Law
• 5 External theories in international criminal law
• 6 Popular Theories in International Criminal Law
• 2.1 Theories of Essence
• 2.2 Theories of Possibility
• 2.3 Theories of Operation
• 2.4 Theories of Implementation
• 2.5 Theories of Evolution
• 3.1 Theorizing against the Laws of War
• 3.2 Questioning the Legal in International Humanitarian Law
• 4 Laws of War or War of Law?
• 5 What do the Laws of War Displace?
• 6 A Moral Reinvention?
• 2 The Interests of Justice
• 3 The Interests of Transition
• 4 Conclusion: Critical Approaches to Transitional Justice
• 2 Why ‘International Environmental’ Law?
• 3.1 The Aesthetic
• 3.2 The Authentic
• 3.3 The Divine
• 3.4 Romanticism in International Environmental Law
• 4.1 Environmental Degradation in the Early Colonial Period
• 4.2 Sustainable Development in the Late Colonial Period
• 2 Historicizing International Law and Development
• 3 What is Law and Development? Conceptualizing the Field
• 4 (De)stabilizing Law; (De)stabilizing Development: Questions of Method
• 5 Concluding Thoughts
• 2 Responsibility Formalism: Primacy of the Law
• 3 Responsibility Managerialism: Primacy of International Authority
• 4 Response-Ability: Primacy of Encounters
• 1 Part of the Problem?
• 2.1 State of the Art
• 2.2 Potential Insights
• 3.1 State of the Art
• 3.2 Potential Insights
• 4.1 State of the Art
• 4.2 Potential Insights
• 2 A Framework for Critical Analysis of Irregular Migration and International Law
• 3.1.1 Legal and Illegal Markets: Background Conditions to Migration Crises
• 3.1.2 Structural Causes of Migration from the Growth in Legal Trade
• 3.1.3 Migration and Illegal Trade—Drug Trafficking as a Global Market
• 3.2 Migration and Global Governance
• 4.1 Refugees versus Non-Refugees
• 4.2 The Effect of Migration Policing through Anti-Trafficking and Anti-Smuggling Efforts on Refugee Operations
• 5 Crisis and Reconceptualization
• 2 On Matters of Theory and Method: Christianity, Europe, and International Law
• 3 The School of Salamanca as a Case Study: On Its Socio-Economic Conditions
• 4 From the Privacy of the Confession Booth to Public International Law
• 2 What is Progress? From the Uppercase to the Lowercase and Back
• 3 The Structure of Progress Arguments
• 4 Progress in International Law Argument: An Example
• 5 In Conclusion
• 1 International Law and Its ‘ism’
• 2 Liberal Legalism as International Law’s Ideology
• 3 Empire-Building: The Liberal Legalization of (International) Politics
• 4 Speaking Politics to Law: Back to the Roots or Out into the Wild?
• 1 The Facts of Poverty
• 2 Poverty as a Legal Regime
• 3.1 Human Rights as Distraction
• 3.2 Localizing Pathology
• 3.3 Human Rights and International Economic Law
• 3.4 Human Rights and the Imagined History of Development
• 2.1 Evolution
• 2.3 Risks and Opportunities
• 3.1 Key Terms
• 3.2 Key Debates
• 3.3 Criticism
• 4 The Relationship of the Debates
• 5.1 Constitutional Fragments
• 5.2 Pluralist Constitutionalism
• 6.1 Processes and Techniques
• 6.2 Conflict Avoidance and Reconciliation
• 6.3 Principle and Practice of ‘Systemic Integration’
• 6.4 ‘Regime Interaction’ as Constitutionalization Lite
• 7 Fragmentation, Constitutionalization, and Politicization
• 8 Conclusion
• [66.249.64.20|185.194.105.172]
• 185.194.105.172

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The Oxford Handbook of the History of International Law (Oxford Handbooks) 1st Edition, Kindle Edition

• ISBN-13 978-0199599752
• Edition 1st
• Sticky notes On Kindle Scribe
• Publisher OUP Oxford
• Publication date November 1, 2012
• Language English
• File size 2526 KB
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• ASIN ‏ : ‎ B00ADLSYTK
• Publisher ‏ : ‎ OUP Oxford; 1st edition (November 1, 2012)
• Publication date ‏ : ‎ November 1, 2012
• Language ‏ : ‎ English
• File size ‏ : ‎ 2526 KB
• Text-to-Speech ‏ : ‎ Enabled
• Screen Reader ‏ : ‎ Supported
• Enhanced typesetting ‏ : ‎ Enabled
• X-Ray ‏ : ‎ Not Enabled
• Word Wise ‏ : ‎ Enabled
• Sticky notes ‏ : ‎ On Kindle Scribe
• Print length ‏ : ‎ 1268 pages
• Page numbers source ISBN ‏ : ‎ 0199599750
• #628 in International Law
• #885 in Legal History (Kindle Store)
• #2,860 in Foreign & International Law

About the author

Anne peters.

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31 Corresponding Adjustments

Matthias Hofacker, Lawyer/Tax Advisor, SOE Hofacker Rechtsanwaltsgesellschaft mbH, Germany

• Published: 23 October 2023
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This chapter examines the purpose of corresponding adjustments to avoid economic double taxation as per indicated in Article 9 of OECD-MA. It defines corresponding adjustments as reports due to a previous initial correction of a company’s tax base. In international tax law, the corresponding adjustment is located in the area of transfer pricing. The application of the corresponding adjustment is based on the OECD’s idea that a correction (initial adjustment) is made to the tax base in a state because the company concerned did not observe the arm’s length principle when agreeing on the transfer price. Additionally, Article 9 paragraph 2 OECD-MA expressly indicates that competent authorities shall consult each other, which ensures the appropriate corresponding adjustment with the state implementing the initial correction.

31.1 Introduction

Corresponding adjustments are reports due to a previous initial correction of a company’s tax base. The aim is to avoid economic double taxation. Economic double taxation (taxation of the same income in the case of different persons) occurs when a company in state A whose profits are increased becomes liable to tax on an amount of that profit that has already been taxed through a company associated with it in state B. 1 The adjustment requires that, in these cases, state B make an appropriate adjustment to avoid double taxation. 2 This measure to avoid economic double taxation is provided for in article 9 paragraph 2 OECD Model Taxation Convention (OECD MC). Insofar as no corresponding provision has been agreed upon in the specific double taxation treaty between the contracting states, the provision is intended to serve as a model for the legislator to take precautions in the respective domestic law in order to prevent economic double taxation. 3

However, the purpose of article 9 OECD MC is not primarily the avoidance of economic double taxation, but rather the allocation of taxation rights according to economic aspects (art. 9 para. 1 OECD MC) and, concomitantly, the avoidance of economic double taxation. 4 This avoidance of economic double taxation is to be ensured in particular by article 9 paragraph 2 OECD MC, provided that the other state shares the initial correction of the first state on the merits and in the amount; consequently, the avoidance of double taxation represents an interplay of article 9 paragraph 1 OECD MC and article 9 paragraph 2 OECD MC. 5 However, if a corresponding adjustment is not made via article 9 paragraph 2 OECD MC, because the other state does not share the first correction of the first state on the merits or in the amount, double taxation of the same tax object may occur. The same applies if the provision of article 9 paragraph 2 OECD MC is not agreed upon in the specific double taxation treaty. Then, at least according to article 25 paragraphs 1 and 2 OECD MC, the states shall endeavour to eliminate this double taxation by mutual consultations in the mutual agreement procedure.

In international tax law, the corresponding adjustment is located in the area of transfer pricing. The application of the corresponding adjustment is based on the OECD’s idea that a correction (initial adjustment) is made to the tax base in a state because the company concerned did not observe the arm’s-length principle when agreeing on the price (transfer price) arising from a business relationship with a person related to that company, for example a sister company. Often, too low a price is agreed, so that the initial correction leads to an increase in the tax base of the company concerned. 6 Without the correction, related companies could reduce the group tax rate in this way. 7 This not only leads to a reduction in the tax revenue of the state concerned. From an economic point of view, the companies concerned achieve unintended tax advantages that result in a distortion of competition. 8 Therefore, it is necessary to perform the initial correction. The logical consequence is that the tax base of the other company is reduced by the amount of the increase due to the initial correction. 9 After all, the correction amount has been earned only once and can therefore be taxed only once. Furthermore, this corresponds to the system of profit distribution in article 7 paragraph 1 sentence 1 HS 1 OECD MC.

Article 9 paragraph 2 OECD MC expressly provides that the competent authorities shall consult each other. 10 This is to ensure the appropriate corresponding adjustment with the state implementing the initial correction. 11 This confirms that the mutual agreement procedure under article 25 OECD MC can be used. 12

31.2 Regulation

The corresponding adjustment covers the cases in which the economic double taxation of two interrelated companies arises due to the attribution of an adjustment to the profit and its taxation in one contracting state. The corresponding adjustment in the other contracting state is therefore the consequence of the assumption of an incorrect profit allocation on the part of the affiliated companies. Thus, the corresponding adjustment becomes necessary if the result of the first adjustment remains. If this only happens because the first-adjusting state maintains its measure contrary to the opinion of the other contracting state, the other state will refuse to make the corresponding adjustment. The result is economic double taxation.

If both contracting states agree that the first adjustment was based on an inappropriate arm’s-length price, then one contracting state will make a correction to the amount of the adjustment from the first adjustment, while the other contracting state will grant relief in the amount of the corrected amount of the adjustment with the corresponding adjustment. In this case, the economic double taxation is eliminated by the cooperation of both contracting states. For an application of article 9 paragraph 1 OECD MC as a basis for the corresponding adjustment, it is not decisive whether the double taxation was triggered by the taxpayer, for example because they changed the tax return, or whether the double taxation was triggered by the tax administration. What is decisive is only that an increase in the tax base has occurred as a result of the correction of the income and that a state has exercised its right of taxation under article 9 OECD MC. 13

If both contracting states agree that the first adjustment in one state was not justified even on the merits, then it must be reversed by one contracting state. This eliminates economic double taxation without a corresponding adjustment under article 9 paragraph 2 OECD MC. Only if both contracting states agree that the first adjustment in one state was justified both on the merits and in terms of the amount, is the other contracting state obliged to perform the corresponding adjustment in accordance with article 9 paragraph 2 OECD MC. 14 Thus, the prerequisites for the adjustment of profits are that:

in one contracting state, profits are attributed to the profits of an enterprise of that state and taxed accordingly;

an enterprise of the other contracting state has been taxed in that state; and

the attribution of profits complies with the arm’s-length principle.

If these conditions exist in addition to the conditions of article 9 paragraph 1 OECD MC, whereby the assessment is made by the other contracting state, that other state shall make a corresponding change to the taxes levied there on those profits.

Here, the arm’s-length principle must be emphasized once again. This forms the benchmark for the intra-group terms and conditions and compares them with those that would have been agreed upon by independent companies. Specifically, the arm’s-length principle means that the affiliated companies must be bound in their commercial or financial relationships by agreed or imposed terms and conditions that independent companies would agree with each other. 15 In this context, the arm’s-length price is determined from empirically traceable prices or margins realized between unrelated firms. 16

If the other state considers the initial correction of the first state to be appropriate in terms of reason and amount, it is obliged to make the corresponding adjustment from article 9 paragraph 2 OECD MC, 17 without carrying out a mutual agreement procedure within the meaning of article 25 OECD MC. 18 Of course, the contracting states will consult. Otherwise, in practice, there will be no consensus among the contracting states on the applicable correction in one state.

The obligation to make a corresponding adjustment is unavoidable in the interest of the taxpayer. 19 However, this also concludes the legal consequence. In order to avoid economic double taxation in the relationship between two interrelated companies, the provision in article 9 paragraph 2 OECD MC constitutes a separate rule for the avoidance of double taxation. 20 Articles 23A and 23B OECD MC are not applicable. It is also irrelevant which method was used by one contracting state to adjust the profit. Therefore, it is also irrelevant whether the correction of the profit has been made within a tax balance sheet (according to accounting principles) or outside the balance sheet when determining the final tax base. Also covered by the correction of profit are, for example, cases of the reduction of a loss or cases of lower depreciation or when determining a loss carry-forwards, which only have an effect in later years. 21 The profits attributed to the affiliated company are, therefore, ‘taxed’ even if the profit adjustment has not led to an immediate tax payment obligation, but to measures that will or may still have an effect on future tax payments. The same applies if a contracting state has not subjected the profits to taxation, for example because of a special tax exemption for individual companies or because a state does not tax corporate profits in general.

The profit allocation and corresponding taxation according to article 9 paragraph 1 OECD MC is the connecting factor and, in principle, also the benchmark for the scope of the corresponding adjustment according to article 9 paragraph 2 OECD MC. The wording profit attribution ‘and’ corresponding taxation expresses that economic double taxation must have actually occurred. In this respect, the corresponding adjustment is directed only to the avoidance of effective (economic) double taxation. 22 Assuming that the adjustment of the profit in one contracting state was carried out with the correct application of the arm’s-length principle, the principle must also be observed for the corresponding adjustment, even if no specific method of adjustment is therefore given to the other contracting state. Article 9 paragraph 2 sentence 1 OECD MC assumes that the ‘taxes levied on such profits’ of the other contracting state are to be changed. In order to determine the appropriate tax, the other contracting state must generally apply the arm’s-length principle when it is not considering crediting the taxes of one contracting state. 23

However, it is sufficient for the initiation of a mutual agreement procedure pursuant to article 9 paragraph 2 OECD MC in conjunction with article 25 OECD MC, if there is a threat of taxation that does not comply with the specific double taxation agreement. 24 As a connecting factor for the corresponding adjustment, only a profit entitlement between associated enterprises within the meaning of article 9 paragraph 1 OECD MC can be considered. This results from the repetition of the fiction of independence of article 9 paragraph 1 OECD MC in article 9 paragraph 2 OECD MC.

The OECD MC does not contain any statement on whether article 9 paragraph 2 OECD MC is also applicable to triangular constellations:

If, for example, a foreign permanent establishment in state A of a company resident in state B supplies discounted goods to a company in state C, it must be examined whether article 9 OECD MC applies. The double taxation treaty between state A and state C would not be applicable in the present case, since the company is resident in state B and the permanent establishment in state A is not a treaty-entitled person within the meaning of article 3 paragraph 1 no. d) OECD MC. Therefore, only the double taxation treaty between state B and state C could be applicable. For application, consider whether state B’s profits have been reduced by arm’s-length conditions. In this regard, it is argued that due to the world income principle, the income of the permanent establishment in state A is subject to taxation in state B. 25 For the question of the applicability of article 9 OECD MC, it is therefore irrelevant whether state B has waived its right of taxation within the scope of the application of its double taxation treaty with state A. State C would therefore be obliged to make a corresponding adjustment in the double taxation agreement between state B and state C on the basis of the article comparable to article 9 OECD MC. State A would be entitled to an increase in profits on the basis of article 7 of the double taxation agreement between state A and state B, since the profits from the supply of goods are attributable to the permanent establishment in state A.

The OECD 26 also sees the case within the scope of article 9 paragraph 2 OECD MC that under the domestic law of some countries, a taxpayer may be permitted to make a correction under appropriate circumstances and thus amend previously filed tax return.

31.2.1 Assessment by the Other Contracting State

The corresponding adjustment pursuant to article 9 paragraph 2 OECD MC presupposes that, as a result of the adjustment of profits made in one contracting state, economic double taxation has occurred in the relationship between two associated enterprises. This requires the taxation of the tax object at the other associated enterprise in the other contracting state. The occurrence of economic double taxation (= identity of the tax object) is assessed by the other contracting party from the perspective of its domestic tax law. 27 Therefore, the legal consequences of article 9 paragraph 2 OECD MC must also be distinguished from those arising from articles 23A and 23B OECD MC. The latter provisions only concern cases of legal double taxation; that is, the subject of the levy must have an identity. From this point of view, the legal consequences of the provisions are mutually exclusive.

The taxation of profits in the first state must be appropriate for a corresponding adjustment. The corresponding adjustment must factually correspond with the correction of the profit in the one contracting state. Therefore, it does not need to match the amount of the correction made to the profit. It also does not need to be recognized in the same tax year as the adjustment to the gain. 28 Nevertheless, the scope of the corresponding adjustment is limited. The corresponding adjustment only covers those cases of economic double taxation in which this is a direct consequence of the initial adjustment. If, on the other hand, the economic double taxation arises, for example, from qualification conflicts or from different national income determination rules, a corresponding adjustment is excluded. 29

The inclusion of article 9 paragraph 2 OECD MC in a specific double taxation treaty does not mean that the other state will be forced to adjust the profit in every case. 30 A claim under treaty law for a corresponding adjustment only exists if, from an economic point of view, the two contracting states tax the same object in two different interrelated companies. Whether this is the case is ultimately decided solely from the perspective of the domestic law of the other contracting state. In doing so, the other contracting state judges autonomously (i.e. independently of the taxation in the contracting state of the first adjustment). The other contracting state checks whether the contracting state of the first adjustment has made the adjustment of the profit in accordance with the arm’s-length principle (based on the merits and the amount). Thus, an obligation to make a corresponding adjustment can only exist to the extent that there is a consensus among states on the application of the arm’s-length principle. 31

According to the OECD, the state of primary adjustment bears the burden of proof in a competent authority proceeding to demonstrate to the other state that the adjustment is justified both in principle and in amount. 32 The OECD expects the competent authorities of both parties to take a cooperative approach in resolving cases of mutual agreement. 33

The other state will additionally consider whether the entities concerned are also related entities in its view (under its domestic tax law) and whether the adjustment of the profit concerns commercial or financial relations of the related entities. 34 In addition, the other state will track whether the arm’s-length violation occurred in the transaction between the related entities that the first state identified when making the adjustment or to a third unrelated entity. If the results of the two contracting states differ, the other contracting state will not see its obligation to make the corresponding adjustment from article 9 paragraph 2 OECD MC in the specific double taxation agreement. The other contracting state will therefore examine whether, in the opinion of the other state, the first state of the initial adjustment has correctly applied the provision of article 9 paragraph 1 in the specific DTA.

In this context, the arm’s-length principle is not limited to the amount, but also extends to the reason and, consequently, to the amount of the profit: if domestic law allows, for example, debt capital to be reclassified as equity, article 9 OECD MC does not prevent this to the extent that ‘its effect is to adjust the profits of the borrower to an amount equal to the profits that would have accrued in an arm’s length situation’. 35 In other words, article 9 OECD MC seeks to ensure that a state only takes into account for taxation purposes profits that would have arisen in comparable arm’s-length transactions. 36 However, a corresponding adjustment of the other state can only be considered if that state is of the opinion that by making the adjustment to the profit, the profits are now reflected that would also have arisen between unrelated third parties. 37 Thus, article 9 no. 3b OECD Commentary accordingly also states that article 9 OECD MC is not only relevant to determining the fair price, but also whether a loan is to be regarded as a loan or as another type of payment, in particular as an equity contribution. This is because if an affiliated company has more borrowed capital than a comparable company, the profit will be reduced due to the increased interest burden compared with the comparable company.

The other state may, of course, provide a provision in its domestic tax law for the corresponding adjustment, which obliges the other state to do so irrespective of the application of a provision under treaty law.

31.2.2 Legal Basis for the Corresponding Adjustment

With regard to the implementation of the corresponding adjustment by the other contracting state, the question arises on the basis of which substantive and procedural provision it has to implement it. 38 With regard to the question of the substantive regulation, in my opinion article 9 paragraph 2 OECD MC represents the legal basis for the corresponding adjustment. In this respect, article 9 paragraph 2 OECD MC has a self-executing effect. An additional legal basis in national law is therefore not required. 39 Therefore, the required corresponding adjustment must be made even if the national tax law of the other state does not regulate a legal basis in this regard. If one insists on the existence of a domestic correction provision, a corresponding adjustment is left to the discretion of the contracting states not to create a correction provision in domestic law, contrary to the commitment entered into in a specific double taxation treaty. This is unacceptable in the light of the principles of international law. The objective of article 9 paragraph 2 OECD MC to avoid economic double taxation can only be effectively achieved if the provision itself is the authoritative correction provision.

The OECD takes the same view in the Transfer Pricing Guidelines as a result. 40 An obligation to make a corresponding adjustment by the other state only exists if an award from arbitration proceedings corresponding to article 25 paragraph 5 OECD MC is available. Further, the OECD states:

Such arbitration shall provide for the appropriate adjustment. This is in line with the principle that, in principle, there is no obligation for tax administrations to reach an agreement. Based on Art. 9 para. 2 OECD [MC], a tax administration shall only make a corresponding adjustment if it considers the primary adjustment to be justified in terms of reason and amount. The non-mandatory nature of corresponding adjustments is necessary so that the tax administration of one state is not forced to accept the consequences of an arbitrary or unmotivated adjustment by the other state. This is also important for maintaining the fiscal sovereignty of each member country of the OECD. 41

The OECD’s explanatory statement is not convincing. Double taxation agreements essentially consist of the restriction of a right of taxation of one of the contracting states in order to avoid double taxation. This restriction was agreed to by both contracting states and, by ratifying it into national law, they effectively deferred sovereignty. 42

Furthermore, in this view, the provision in article 9 paragraph 2 OECD MC is superfluous, or at least not comprehensible. If this view were correct, the corresponding adjustment would have been regulated in article 25 OECD MC and not in article 9 paragraph 2 OECD MC.

It is also argued in the literature that article 9 paragraph 2 OECD MC must be supplemented by the domestic correction of the profit rule. 43 Otherwise, an arm’s-length standard could be applied in the domestic law of a contracting state, which would conflict with the provision in article 9 paragraph 2 OECD MC, which is comparable in the specific agreement. Only if there is a single arm’s-length standard—and this is also consistent with the dealing at arm’s-length principle of article 9 paragraph 1 OECD MC—is there a chance of arriving at uniform results under domestic and treaty law. Insofar as domestic law permits adjustments to profit that go beyond what is permitted by the dealing at arm’s-length principle, article 9 paragraph 1 OECD MC restricts the possibilities for adjustment under the conditions set out in this provision. What applies to article 9 paragraph 1 OECD MC in this respect must also apply accordingly to article 9 paragraph 2 OECD MC. This provision only opens the possibility for the contracting states of a specific double taxation treaty to apply their domestic rules on a versus adjustment. If the domestic tax law of one of the contracting states involved lacks a corresponding provision to adjust the profit, the corresponding adjustment to avoid economic double taxation can only be made on the basis of a mutual agreement procedure in which the other state agrees to make the corresponding adjustment for reasons of equity. Whether the taxpayer is entitled to an equitable decision is left to the respective domestic legal systems of the states involved.

This view is to be followed insofar as a distinction is to be made between article 9 paragraph 1 OECD MC and article 9 paragraph 2 OECD MC. Since double taxation treaties are aimed at imposing barriers on the respective domestic tax law in the bilateral relationship, they have a direct effect on the respective tax law relationship. They are directly applicable after transposition into national law, and as such have a self-executing character. 44 This character cannot be assumed for all the provisions in the OECD MC. There are provisions that are merely enabling standards (i.e. that still require a national statutory provision in order to be implemented). Whether a provision in the double taxation treaty has a self-executing effect is to be inferred from the wording and meaning of the individual provision. 45 Formulations such as ‘may’ or ‘can’ speak for enabling norms, whereas formulations such as ‘are’ speak for directly applicable norms. 46 Moreover, domestic applicability in such a way that the international treaty also creates rights and obligations for the individual beyond an obligation of the contracting states depends on the provisions of the double taxation treaty being specific enough (i.e. applicable). In German tax law, this corresponds to article 2 of the German Fiscal Code (Abgabenordnung).

No self-executing effect can be assumed for article 9 paragraph 1 OECD MC. The wording of the provision already indicates the character of an enabling rule, because the corresponding profits ‘may’ be adjusted. 47 Also the sense of the regulation demonstrates the necessity that article 9 paragraph 1 OECD MC cannot by itself represent an independent legal basis for a result correction, but rather presupposes corresponding regulations in the national tax law. This is because double taxation treaties do not create a tax liability or increase a tax above the domestic tax laws. Without a corresponding provision in national tax law, therefore, no domestic tax claim can be established or extended on the basis of article 9 paragraph 1 OECD MC.

The provision in article 9 paragraph 2 OECD MC is to be understood differently. According to the wording, the other state is not authorized to make the corresponding adjustment. The other state is expressly required ‘so the other state shall make a corresponding adjustment to the tax imposed thereon on such profits’. 48 This is consistent and underscores the intent of the provision. This is also how the OECD can be understood when it expressly assumes corresponding adjustments on the basis of article 9 paragraph 2 OECD MC and only refers to the domestic law of the other state in the absence of a corresponding provision in the specific agreement. 49 Article 9 paragraph 2 OECD MC only triggers the obligation of the other state to make the corresponding adjustment if the initial correction is correct. In other words, the obligation to adjust the other state accordingly does not, of course, exist if, in the opinion of the other state, the initial adjustment is not compatible with article 9 paragraph 1 OECD MC in terms of reason and amount. 50 Accordingly, in the case of a partial agreement between the contracting states, there is also only an obligation to make a partial adjustment in accordance with article 9 paragraph 2 OECD MC. 51

The corresponding adjustment then relieves the taxpayer in the other state from avoiding economic double taxation of the tax object. In other words, the other state excludes from actual taxation any substrate to which it is not substantively entitled. It is not understandable why the other state, as a result of its obligation in a specific double taxation agreement in accordance with article 9 paragraph 2 OECD MC, should regulate in its national tax law not to tax something to which it has no right.

Only in formal terms, must a correction provision be regulated in national law if the respective national legal system is divided between formal and substantive law. If such a separation is foreseen, there must be regulations in order to be able to break through the regularly occurring validity of the affected tax assessments.

31.3 Method of Corresponding Adjustment

Article 9 paragraph 2 OECD MC does not specify a particular method for making an adjustment. 52 The procedural treatment of the corresponding adjustment is governed by the adjustment rules provided for in the domestic tax laws of the contracting states if the contracting states do not agree on another method of adjustment within the framework of a mutual agreement procedure within the meaning of article 25 OECD MC. The OECD Commentary identifies two options for such an adjustment. 53 On the one hand, the assessment of the company can be changed and thereby the reduction of the taxable profit can be achieved or the corresponding adjustment can be made by a corresponding application of article 23A or 23B OECD MC.

The first variant leads to the fact that it is a mirror-image measure of the initial adjustment and differences in the amount of tax in both states have no influence. 54 The OECD envisions this method as the usual one. 55 It may be relevant whether the corrective measures are to be taken within the tax balance sheet according to domestic law or outside the tax balance sheet when determining the taxable income of the company concerned. According to accounting principles, corrections within the tax balance sheet can have either a negative or a positive effect in later assessment periods due to reversal effects. It is also considered difficult if there is no domestic norm for the corresponding adaptation and if one rejects the self-executing character of article 9 paragraph 2 OECD MC. In these cases, a tax remission or tax reduction for reasons of equity would have to be examined in the contracting state concerned.

With regard to the second possibility of basing the corresponding adjustment on a corresponding application of article 23A or 23B OECD MC, it should be noted that only a corresponding application of these provisions is conceivable. Both provisions presuppose subject identity; moreover, they only cover cases in which the income ‘may be taxed under this convention’ in the other contracting state. However, this is not the case for the profits of an enterprise in a contracting state that, according to article 7 paragraph 1 sentence 1 OECD MC, can only be taxed in that state. 56

31.4 Mutual Agreement Procedure

The dispute-resolution mechanism described in article 25 OECD MC is a central and indispensable part of the obligations undertaken by a contracting state when concluding a double taxation treaty. Article 25 OECD MC must be fully implemented in good faith, in accordance with its provisions and taking into account the object and purpose of a double taxation treaty. The OECD aims at the full implementation of agreement commitments regarding the mutual agreement procedure and expects that cases to be settled by mutual agreement procedures will be ensured expeditiously. 57

As a minimum standard, states have defined that paragraphs 1–3 of article 25 OECD MC shall be included in their double taxation treaties in accordance with the interpretation in the OECD Commentary and subject to the derogations provided for in points 3.1 and 3.3 of the minimum standard. They should allow the use of the mutual agreement procedure for transfer pricing cases and implement the resulting mutual agreements (e.g. by adjusting the assessed tax accordingly). Therefore, the OECD opposes states denying companies access to the mutual agreement procedure after a transfer pricing adjustment in the other state. 58 States should publish rules, guidelines, and procedures for initiating and conducting the mutual agreement procedure and take reasonable steps to make this information available to taxpayers. States should ensure that their guidelines for plea-bargaining procedures are descriptive and readily available to the public. 59

Article 9 paragraph 2 OECD MC is applicable according to its wording without the prior implementation of a mutual agreement procedure. On the other hand, article 9 paragraph 2 OECD MC does not prohibit the implementation of a mutual agreement procedure, consultations, or a formal agreement by the contracting states. However, the corresponding adjustment according to article 9 paragraph 2 OECD MC presupposes that there is an agreement between both contracting states on the qualification of the performance payment (e.g. as licence fee, dividend, interest, etc.) and on its appropriate amount. 60 Although the initial adjustment forms the standard for the scope of the corresponding adjustment, this initial adjustment is readily possible by one contracting state, but this alone does not automatically give rise to an adjustment obligation in the course of a corresponding adjustment for the other contracting state. 61

The agreement between the contracting states on the reason for the initial adjustment presupposes that both contracting states agree on a set of facts justifying the entitlement to profits. 62 On the other hand, it is not necessary for the contracting state called upon to make the corresponding adjustment to follow the classification of the facts under one of the domestic legal bases of the contracting state making the first adjustment. The only thing that matters is that, in the opinion of both contracting states, the entitlement to profits was carried out in accordance with article 9 paragraph 1 OECD MC. 63 In this context, particular attention should be paid to the fact that the matching qualification of performance pay is an important prerequisite for the comparability of initial and matching adjustments. The agreement on the amount of the adjustment requires both states to reach the same conclusions in determining the appropriate (i.e. customary) fee for services among independent third parties. This includes the consistent application of benefit-sharing principles. 64

If, on the other hand, the other contracting state assumes that the initial reporting does not comply with the arm’s-length principle, article 9 paragraph 2 sentence 2 OECD MC provides for the possibility for the competent authorities of the contracting states to consult each other. The mutual agreement procedure is a proven means by which competent authorities negotiate to resolve disputes and eliminate double taxation from transfer pricing adjustments. 65 The consultation is a mutual agreement procedure according to article 25 OECD MC between the contracting states involved. 66

Even before the inclusion of article 9 paragraph 2 OECD MC in the 1977 OECD MC, it was assumed that the procedure could also be carried out for the elimination of economic double taxation, which was derived from the Commentary on article 25 OECD MC. 67 However, the mutual agreement procedure is not a mandatory requirement for the contracting states to reach the agreement. Rather, it is a process for reaching an agreement, to be found on the basis of substantive treaty and domestic law. 68 It is natural for states to provide for a compulsory arbitration procedure 69 in the specific double taxation agreement or to apply the EU Arbitration Convention. 70

Since the bilateral adjustment of profits clauses permits a first adjustment and thus an increase in profits by one contracting state without regard to a second adjustment (reduction in profits) by the other contracting state, in international taxation practice, the first adjustment usually remains. The reasons for this are, on the one hand, that many double taxation treaties do not provide for adjustments, 71 there is no obligation for consultations and mutual agreement procedures, and, finally, as far as such consultations and mutual agreement procedures are carried out, the compulsory agreement of the involved contracting states is not provided for. 72 Thus, the bilateral correction of the profit clause is consistently to the detriment of companies domiciled in both contracting states, with the result that internationally operating corporations in particular are exposed to economic double taxation without effective protection, which cannot be avoided even through advanced pricing agreements (APAs). Effective protection can therefore only be achieved by means of an arbitration clause anchored in the double taxation agreement. (Economic) double taxation can then still be avoided through the EU Arbitration Convention, which provides for a mutual agreement procedure as the first stage and an arbitration procedure as the second stage.

31.5 Arbitration Convention

A corresponding profit adjustment has been achieved with the so-called Arbitration Convention, at least within the EU. If the profits of a company are simultaneously included in the profits of a company in the other contracting state on the basis of a profit adjustment in accordance with article 9 paragraph 1 OECD MC, a three-stage procedure is initiated (art. 4 no. 1 Arbitration Convention), which leads to a binding agreement on a mandatory basis. Comparable to this, the OECD has also anchored mandatory arbitration in the text of the agreement (art. 25 para. 5 OECD MC). According to this provision, a case that has been unsuccessfully tried by the competent authorities in a mutual agreement procedure shall be submitted to an arbitration court, which shall decide the case in a binding manner. In contrast to the provision in the Arbitration Convention, taxpayers cannot directly invoke the OECD MC. The prerequisite here is that the arbitration procedure has found its way into the text of the specific double taxation agreement.

31.6 The Secondary Correction

The OECD distinguishes the ‘secondary adjustment’ from the corresponding adjustment according to article 9 paragraph 2 OECD MC. 73 It is not regulated in article 9 OECD MC, but if a secondary adjustment is made, a tax administration is thereby bound by the wording of article 9 paragraph 2 sentence 2 OECD MC ‘in making this change, the other provisions of the Agreement shall be taken into account’ with respect to the manner of its implementation to the substantive agreement law.

By way of initial adjustment (as defined in art. 9 para. 1 OECD MC), the profit share shifted in favour of a company is taxed at the company to which it is attributable according to the arm’s-length principle. The corresponding adjustment results in a mirror-image relief for the other company of the tax with which it was burdened only as a consequence of the arm’s-length transaction. Both measures are limited to the fictitious allocation of the profit without necessarily reversing the benefit actually granted. The amounts on which the taxation was based as adjusted profits are therefore generally still held by the enterprise of the contracting state that made the corresponding adjustment. The secondary profit adjustment pursues the goal of taxing those amounts in accordance with the treaty. 74 If the transferred profit is deemed to be a hidden profit distribution (i.e. a ‘dividend’) within the meaning of the double taxation agreement, the contracting state that made the initial adjustment in accordance with article 9 paragraph 1 OECD MC may levy a dividend tax in addition to the corporate income tax on the profit used for that distribution. The other contracting state may also subject these dividends to its taxation with credit for the dividend tax, unless it has to grant a nesting privilege in accordance with the double taxation agreement. 75 However, the OECD implies that withholding taxes on dividends should be avoided whenever possible. Cases where the taxpayer acted intentionally to avoid withholding taxes are excluded. 76

There is no room for a secondary profit adjustment if the company actually holding the benefit returns it to the company subject to the initial adjustment (e.g. by posting a receivable), on consideration of expense in a secondary adjustment.

The OECD points out that an off-balance sheet adjustment due to inappropriate transfer prices between sister companies may also have consequential effects on the common parent company. In Germany, an adjustment of profit due to inappropriate transfer pricing at a subsidiary triggers a hidden profit distribution via the chain to the common parent company. The parent then makes hidden contributions to the other sister company involved in the transaction. 77 The example makes it clear that consequential effects arise for companies in countries that are not involved in the transaction. The OECD points out that states are encouraged to limit the impact of secondary adjustments. 78

Some states also apply the concept of a disguised loan. The state making the initial authorization therefore assumes that the company has made a loan to the company in the other state in the amount of the arm’s-length remuneration. Some states continue to assume that interest must then be paid on that loan accordingly. However, this assumption only makes sense from an economic point of view if one assumes that the company would have reinvested the supposedly increased profit at interest and that a profit distribution in favour of the shareholder would not have been made. The OECD takes a sceptical view of the acceptance of hidden loans, since the acceptance of a loan with an accompanying interest payment leads to further consequential problems, which would in turn be the subject of article 9 OECD MC. 79

Art. 9 no. 5 OECD Commentary.

Para. 4.32 OECD Transfer Pricing Guidelines (OECD TP Guidelines) 2017.

  Carroll , Methods of Allocating Taxable Income, in League of Nations, Taxation of Foreign and National Enterprises , vol. IV (Geneva: League of Nations, 1933) .

Art. 9 no. 5 OECD Commentary; Li, Canadian Tax Journal (2002), 836.

Para. 4.32 OECD TP Guidelines 2017.

  OECD, ‘Addressing Base Erosion and Profit Shifting’ (2013), 6 , 48.

  Kumar et al., Journal of Business Research 134 (Sept. 2021), 275 .

  Jacobs , Endres , and Spengel , Internationales Unternehmensbesteuerung , 8th ed. (Munich: C. H. Beck, 2016), 667 .

Para. 4.33 OECD TP Guidelines 2017.

  Lehner and Eigelshoven , Doppelbesteuerungsabkommen , 6th ed. (Munich: C. H. Beck, 2015) , art. 9 m.no. 129a; Rosenberger et al., Doppelbesteuerungsabkommen , 2nd ed. (Vienna: Linde, 2019) , art. 9 m.no. 222

  Wassermeyer and Baumhoff , Verrechnungspreise international verbundener Unternehmen (Cologne: Otto Schmidt Verlag, 2014), 151 .

  Rogers and Oats , ‘Transfer Pricing: Changing Views in Changing Times, Accounting Forum (2021), 83 .

Para. 2.10 OECD TP Guidelines 2017.

Art. 9 no. 6 OECD Commentary; Schaumburg and Häck , Internationales Steuerrecht , 4th ed. (Munich: C. H. Beck, 2017), 882 ; Schwenke and Greil in Wassermeyer , ed., Doppelbesteuerungsabkommen (Munich: C. H. Beck, 2021), art. 9 m.no. 29 .

Greil, ifst-Schrift No. 512, 39ff.

  Jacobs, Endres, and Spengel , Internationales Unternehmensbesteuerung , 8th ed. (Munich: C. H. Beck, 2016), 667 .

  Ditz, Internationale Gewinnabgrenzung bei Betriebsstätten (Berlin: ESV, 2003), 64 .

Schwenke and Greil, in Wassermeyer, Doppelbesteuerungsabkommen , art. 9 m.no. 191.

Eigelshoven, in Vogel and Lehner , eds, Doppelbesteuerungsabkommen (Munich: C. H. Beck, 2015) , art. 9 m.no. 163; Schwenke and Greil, in Wassermeyer, Doppelbesteuerungsabkommen , art. 9 m.no. 212; Andresen, Konzernverrechnungspreise für multinationale Unternehmen: Paradigmenwechsel bei der steuerlichen Einkünfteabgrenzung (Deutscher Universitäts-Verlag, 1999) .

Schwenke and Greil in Wassermeyer, Doppelbesteuerungsabkommen , art. 9 m.no. 212.

Eigelshoven in Vogel and Lehner, Doppelbesteuerungsabkommen , art. 9 m.no. 163.

  Ibid. , m.no. 164a.

Art. 9 no. 6.1 OECD Commentary.

Foley and Dhanuka, ‘Secondary Transfer-Pricing Adjustments’, The Tax Adviser (June 2022).

Art. 9 no. 10 OECD Commentary.

Eigelshoven in Vogel and Lehner, Doppelbesteuerungsabkommen , art. 9 m.no. 161.

Art. 9 no. 6 OECD Commentary; Greil, ifst-Schrift No. 512, 40.

Para. 4.17 OECD TP Guidelines 2017.

Schwenke and Greil in Wassermeyer, Doppelbesteuerungsabkommen , art. 9 m.no. 197.

Art. 9 No. 3a OECD Commentary.

Brauner, Intertax (2014), 615.

Avi-Yonah, World Tax Journal (Feb. 2010), 3.

Foley and Dhanuka, ‘Secondary Transfer-Pricing Adjustments’.

Ditz in Schönfeld and Ditz , eds, Doppelbesteuerungsabkommen , 2nd ed. (Cologne: Otto Schmidt, 2019), art. 9 m.no. 148 .

Para. 4.35 OECD TP Guidelines 2017.

  Kroppen and Rasch , Handbuch internationale Verrechnungspreise (Cologne: Otto Schmidt Verlag, 2020) , OECD-Kapitel IV m.no. 144.

  Wassermeyer and Baumhoff , Verrechnungspreise internationaler Unternehmen (Cologne: Otto Schmidt Verlag, 2014), 151 ; Schwenke and Greil in Wassermeyer, Doppelbesteuerungsabkommen , art. 9 m.no. 207; Jacobs , Endres , and Spengel   Internationales Unternehmensbesteuerung , 8th ed. (Munich: C. H. Beck, 2016), 667 .

  Schaumburg and Häck, Internationales Steuerrecht , 759.

  Aigner et al., Doppelbesteuerungsabkommen , 2nd ed. (Vienna: Linde, 2019) , art. 9 m.no. 237.

OECD, ‘BEPS Action 14, 2015 Final Report: Making Dispute Resolution Mechanisms More Effective’ (2015), para. 11.

Art. 9 no. 6 OECD Commentary; para. 4.35 OECD TP Guidelines 2017; Aigner et al., Doppelbesteuerungsabkommen , art. 9 m.no. 230.

Schwenke and Greil in Wassermeyer, Doppelbesteuerungsabkommen , art. 9 m.no. 29.

Art. 9 no. 7 OECD Commentary.

  Eigelshoven , Doppelbesteuerungsabkommen , 6th ed. (Munich: C. H. Beck, 2015) , art. 9 m.no. 177.

Para. 4.34 OECD TP Guidelines 2017.

Eigelshoven, Doppelbesteuerungsabkommen , art. 9 m.no. 177a.

  OECD, Improving the Efficiency of Dispute Resolution Mechanisms, Action Item 14—Final Report 2015 , OECD/G20 Profit Shifting and Shortage Project (Paris: OECD Publishing, 2018), http://dx.doi.org/10.1787/9789264190122-de , 13 I.A.1, Rz. 9 .

Para. 4.43 OECD TP Guidelines 2017.

Para. 4.44 OECD TP Guidelines 2017.

  Schaumburg and Häck, Internationales Steuerrecht , 881.

Eigelshoven in Vogel and Lehner, Doppelbesteuerungsabkommen , art. 9 m.no. 164b.

Art. 9 no. 6 OECD Commentary; Ditz in Schönfeld and Ditz, Doppelbesteuerungsabkommen , art 9 m.no. 146.

Ditz, ibid., m.no. 143.

Ibid., m.no. 145.

Para. 4.29 OECD TP Guidelines. 2017.

Para. 4.33 OECD TP Guidelines; art. 25 nos 10ff OECD Commentary.

Art. 25 nos 11 and 12 OECD Commentary.

Art. 25 nos 72ff OECD Commentary; OECD, ‘Transfer Pricing, Corresponding Adjustment and the Mutual Agreement Procedure’ (1982).

Art. 25 para. 5 OECD MC 2008.

Convention No. 90/436/EEC on the elimination of double taxation in connection with the adjustment of profits of associated enterprises of 23 July 1990.

Eigelshoven in Vogel and Lehner, Doppelbesteuerungsabkommen , art. 9 m.no. 145.

  Schaumburg and Häck, Internationales Steuerrecht , 882.

Art. 9 no. 7 OECD Commentary; IFA, Adjustments 19b (1996), Rz. 1.

Para. 4.67 OECD TP Guidelines 2017.

Para. 4.69 OECD TP Guidelines 2017.

Para. 4.72 OECD TP Guidelines 2017.

Para. 4.71 OECD TP Guidelines 2017.

Paras 4.68 and 4.71 OECD TP Guidelines 2017.

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