Interpreting Double Tax Agreements

Scholars have discussed at length whether they should interpret a treaty as a treaty – that is, interpreting contracts to implement the intent of their authors – or how a status in which interpretive methods such as textualism or purposivism can come into play. The Court purported to make the first 35, although some argued that “while the prevailing rhetoric of the interpretation of the contract is contractual, but the underlying idiom and approach are prescribed by law.” 36 Others argue that contracts are sui generis and that neither contractual principles nor principles of interpretation guide the Court of Justice; Instead, it decides contractual matters to a large extent out of respect for the executive, which favours a flexible method of interpretation.37 Nevertheless, the contractual approach remains, on the whole, influenced by the American courts. However, I would like neither analogy to be particularly useful or descriptible for the interpretation of tax treaties. [7]. Michael P. Van Alstine, Delegation of Judicial powers and treaties, 90 Calif. L.Rev. 1263, 1266 (2002) (on the rarity of treaty interpretation; see also Curtis J. Mahoney,Note, treated as treaties: textualism, contract theory and treaty interpretation, 116Yale L.J. 824, 828 (2007) (same). For outstanding American contributions in the field of treaty interpretation, see generally David J.

Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L.Rev. 953 (1994) (regarding the fact that the status of treaties as sui generis instruments has created a chaotic approach to their interpretation by the Tribunal, which has largely led to the tribute to the executive); Curtis A. Bradley, ChevronDeference and Foreign Affairs, 86Va. L. Rev. 649 (2000) (with justification for Chevron with respect to external interpretations of the executive, including treaties); Robert M. Chesney, Deferment: The Judicial Power and Executive Treaty Interpretations, 92Iowa L. Rev. 1723, 1727 (2007) (on the grounds that the doctrine of deference is not clarified and suggests “linking the practice of honour to a reasonable theoretical basis”); Evan Criddle, The Vienna Convention on the Law of Treaty in U.S. Treaty Interpretation, 44 goes. J.

Int`l L. 431 (2004) (against the nationalist approach to treaty interpretation on the basis of the interpretation of contracts such as treaties); John Norton Moore, Treaty Interpretation, the Constitution and the Rule of Law, 42Av. J. Int`l L. 163, 174 (2001) (against the “double” approach in treaty interpretation); Martin A. Rogoff, Interpretation of International Agreements by Domestic Courts and the Politics of International Treaty Relations: Reflections on Some Recent Decisions of the United States Supreme Court, 11 Am. U. J.

Int`l L. – Pol`y 559 (1996) (Criticism of the Rehnquist Court`s restrictive approach to contract interpretation); Scott M.

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