Static vs. Dynamic interpretation PANEL Judge Dr

Transcript:Static vs. Dynamic interpretation PANEL Judge Dr:
Static vs. Dynamic interpretation PANEL Judge Dr Manuel Hallivis-Pelayo (México) Judge Dr Stefan Wilk (Germany) Judge Dr Bernard Peeters (Belgium) Judge Dr Michael Beusch (Switzerland) Judge Dr Alexandre A. Teixeira (Brazil) Introduction. Basic problem. Background. Legal sources. Key issues. Case studies. Outcome of the cases. Conclusions. Content 2 Static vs. Dynamic Interpretation Use of previous or latter Commentaries by Courts? The Basic Problem 3 VCLT (General rules on treaty interpretation). Article 3(2) of the OECD MC. Legal Sources 4 Article 31(1): Treaty terms should be interpreted in good faith and in accordance with the ordinary meaning, in the light of the object and purpose of the treaty. Article 31(4): However, special meaning if it is established that the parties so intended. Article 31(2) and (3): The interpreter can have recourse to authentic expressions of intent by the Contracting States. Article 32: Supplementary means of interpretation can be permitted if the outcome is ambiguous, ambiguous obscure or manifestly absurd. VCLT Vienna Convention on the Law of Treaties (Dr Engelen) 5 Introduction of the OECD MODEL 28. “For each Article in the Convention, there is a detailed Commentary that is intended to illustrate or interpret its provisions.” 29. “As the Commentaries have been drafted and agreed upon by the experts appointed to the Committee on Fiscal Affairs by the Governments of member countries, they are of special importance in the development of international fiscal law. Although the Commentaries are not designed to be annexed in any manner to the conventions signed by member countries, which unlike the Model are legally binding international instruments, they can nevertheless be of great assistance in any manner to the conventions signed by member countries, which unlike the Model are legally binding international instruments, they can nevertheless be of great assistance in the application and interpretation of the conventions and, in particular, in the settlement of any disputes.” 33. “… other changes or additions to the Commentaries are normally applicable to the interpretation and application of conventions concluded before their adoption, because they reflect the consensus of the OECD member countries as to the proper interpretation of existing provisions and their application to specific situations.” 6 Introduction 7 Static vs. Dynamic Approach Static interpretation or approach, means the use of the current commentaries at the time the DTC was concluded. Argument: These are the commentaries that the negotiators and their parliaments knew at the moment of negotiating