The OECD Multilateral Instrument: Challenge or Opportunity of Multilateralism in International Tax?, in The Aftermath of BEPS (Joanna Wheeler ed., IBFD 2020)

This chapter starts by raising questions about whether the MLI may truly be considered an expression of renewed multilateral fiscal relations. Section 6.2. maintains that this new international agreement amounts, at best, to a form of “weak multilateralism”, despite having resulted from transnational tax policy negotiations that were somewhat more inclusive than the BEPS initiative. The argument is twofold. First, even though the MLI was devised by a larger group of countries, the mandate for its development carefully restricted its scope to implementing the OECD-based Action Plan, which was designed, framed, and organized as a work project by the OECD as part of its mandate to serve OECD member country interests. Second, by all accounts, the MLI was not intended to replace the bilateral tax treaty network with a single uniform global tax regime with substantive rules (as envisioned in the past). On the contrary, it appears to have been designed to be applied alongside covered tax agreements (CTAs), modifying only their application (and may even be viewed as temporary to the extent covered agreements are ultimately renegotiated in the future). Section 6.3., in turn, accepts the MLI’s shortcomings in terms of legitimacy but tries to work with, instead of against it. Put differently, working within the parameters introduced by the OECD, this section advances a legal argument that even though a collective arrangement is different than substantive multilateral governance, the MLI could ultimately be used strategically to achieve the latter at some future date.

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