Because the traditional non-discrimination article of tax treaties seemingly provides protection against only the most blatant discrimination against non-residents and non-nationals of a taxing State, governments may be emboldened to adopt “anti-abuse” rules that are in reality disguised trade barriers. On the other hand, trade disciplines in non-tax agreements may include protections against discriminatory taxes that non-specialist courts interpret in expansive ways, contrary to the wishes of tax authorities. An OECD project in the mid-2000s was an opportunity for governments to re-think the piecemeal nature of the traditional non-discrimination article in tax treaties and develop a coherent national treatment system that takes into account legitimate tax policy concerns. Instead, the project resulted in a mishmash of changes that largely blessed the various discriminatory practices that governments had adopted to that date. If tax authorities want to continue to play a leading role in developing international tax policy, they should consider whether a tax treaty approach that borrows concepts from non-tax agreements would better balance the interests of governments and taxpayers than the current version of Article 24 (and the Commentaries thereon).
Brown, Patricia A.
"Can Anyone Be Trusted to Enforce National Treatment Disciplines With Respect to Tax Measures?,"
Florida Tax Review: Vol. 23, Article 4.
Available at: https://scholarship.law.ufl.edu/ftr/vol23/iss1/4