The Importance of Context for Analysing the Implementation of International Tax Standards

By Adrián Grant

In an international tax environment in which political decisions and the public opinion can influence tax policy agendas like never before, there is an increasing awareness about the importance of context in the design and implementation of tax rules, or the idea that a tax rule must be interpreted in light of the social and political circumstances under which it is transplanted. This idea is not new: the notion that a rule can be altered by its context has been around for a long time.[1] However, when law comparatists began to analyse the transplant of laws from one jurisdiction to another, the importance given to this context (both of the donor and the receiving jurisdictions) varied widely, from the dismissal of political circumstances as unnecessary knowledge (Alan Watson) to the impossibility of transplanting a law based on the idea that separating law from its context could not be done (Pierre Legrand).[2]

In the study of tax law transplants, although there has been a steady development regarding the methods for ascertaining the impact of context in the implementation of new rules,[3] the law comparatists’ dilemma on the importance of context persists: given the multidisciplinary nature of such a task, there are also varying opinions on how to carry out a tax law analysis in which the circumstances surrounding legal transplants is properly scrutinized. However, at the least, a triple analysis of (i) the functioning of the tax rule, (ii) the context surrounding its inception, and (iii) the context surrounding its transplant into an alien jurisdiction should be carried out if the importance of context is assumed.

But what is the importance of context in the transplant of tax rules? Who is it important for? These are also relevant questions, since it is generally assumed that tax laws mainly concern tax lawyers, although political scientists have shown an increasing interest in the subject, based for instance on the deep ideological subtext of tax law, or the impact of OECD and EU tax policies in the field of international relations. ‘Importance’ of context could be understood here as ‘how it affects the functioning of the transplanted tax rule’.

An example of this importance of context in the transplant of international tax rules can be found in the behaviour of certain offshore financial centres, which may adhere to tax standards in order to avoid sanctions or peer pressure (often in the form of naming-and-shaming strategies), but will fail to implement the substance of the rule — a process known as ‘mock compliance’.[4] In this case, the context of the jurisdiction adopting a tax rule is crucial, for even though the letter of the law may be transplanted, its effective application is blocked by the circumstances surrounding it. Although this is a clear-cut example, the impact of context in the implementation of international tax standards can be more subtle, often requiring a more elaborate analysis. Furthermore, the scope of context is still uncharted: although some authors have already pointed out a few particularly relevant elements (the role of organised groups like big businesses, as pointed out by Otto Kahn-Freund[5], is a case in point), it is still necessary to separate the wheat from the chaff when it comes to analysing context, since there seems to be no systematic approach for classifying these elements[6], and surely not everything that surrounds the implementation of a tax rule will condition its practical application.

All this haziness surrounding context shows how multidisciplinary things can get when analysing the implementation of international tax rules, for law and political science can be equally useful for this task. Consequently, the need for analyses such as the GLOBTAXGOV Project, in which not only the study of the content of a tax law is taken into account, but also how context impacts it — whatever this context may comprise and however should it be studied —, cannot be stressed enough.

[1] See e.g. Montesquieu’s position in De l’Esprit des Lois: La loi, en général, est la raison humaine, en tant qu’elle gouverne tous les peuples de la terre, & les lois politiques & civiles de chaque nation, ne doivent être que les cas particuliers où s’applique cette raison humaine. Elles doivent être tellement propres au peuple pour lequel elles sont faites, que c’est un très-grand hasard si celles d’une nation peuvent convenir à une autre. Il faut qu’elles se rapportent à la nature & au principe du gouvernement qui est établi, ou qu’on veut établir ; soit qu’elles le forment, comme font les lois politiques ; soit qu’elles le maintiennent, comme font les lois civiles […].

[2] For an overview of different authors and their takes on legal transplants, see John W. Cairns’ Watson, Walton, and the History of Legal Transplants.

[3] An overview of many of these methods can be found in Omri Y. Marian’s The Discursive Failure in Comparative Tax Law.

[4] The idea of ‘mock compliance’ in international tax law is discussed by Richard Woodward in Global Tax Governance: What Is Wrong with It and How to Fix It (edited by Peter Dietsch and Thomas Rixen).

[5] Kahn-Freund is a crucial author for understanding the importance of context in the analysis of legal transplants. In his article On Uses and Misuses of Comparative Tax Law, Kahn-Freund argues that there are at least three essential features of the political element to keep in mind: (i) the distinction between the communist and the non-communist world;[5a] (ii) the different policy process among different types of democracies; and (iii) the role of organized interests in the making and maintenance of legal institutions. It is this third element that Kahn-Freund considers to be the most important.

                [5a] N.B. Kahn-Freund’s article was published in 1974.

[6] Could such thing exist, given the particularities of each jurisdiction?