International Tax Arbitration in Asia

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22 April 2021, Thursday

07.00 - 10.00PM
Zoom Webinar

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Programme Synopsis

The Singapore University of Social Sciences (SUSS) School of Law and Tribute are proud to present the inaugural webinar on international tax arbitration with a focus on Asia.

With more than 3,000 Double Tax Agreements (DTAs), the system of DTAs has been the bedrock of the international tax system. For several years, Article 25 of the Model Tax Convention of the Organisation for Economic Co-operation and Development on Income and on Capital ('OECD Model Tax Convention'), and Article 25 of the United Nations Model Double Taxation Convention between Developed and Developing Countries ('UN Model Tax Convention') had relied on a negotiation-based Mutual Agreement Procedure (MAP) as the only mechanism for the resolution of disputes arising from a tax treaty. In order to improve the function of the MAP mechanism, the OECD, in 2008, and the UN Tax Committee, in 2011, introduced a binding ad hoc arbitration clause in Article 25(5) of their respective Model Tax Conventions.

Since then, mandatory arbitration has been recommended by BEPS Action 14 and adopted by a number of countries such as the US and Germany. Europe has advanced far ahead with its Arbitration Convention. In Asia, however, arbitration as a means to resolve disputes in international tax remains at the starting point. The lack of a strong coherent regional multinational grouping and institution, the wide variations of circumstance and capacities of the 40 countries across Asia and the relative lack of experience in international arbitration forums are some of the reasons cited for the paucity of international tax arbitration cases in Asia.

However, two recent arbitral awards involving the Indian government and multinationals has renewed interest in arbitration as an effective means to address cross-border tax disputes. It is with this in mind that we bring you penetrating and comparative insights from the world's leading academic, industry experts, tax professionals, tax administrators and the judiciary in this vastly important area that is a cornerstone of international tax dispute resolution in G20-OECD Base Erosion Profit Shifting project and the upcoming OECD Inclusive Framework Pillar One with a particular focus on Asia.

Programme Outline

Frontiers of International Tax Arbitration:
• Global trends
• Modalities (baseball vs last best offer, mandatory arbitration under the MLI etc.)
• Comparative perspectives: (i) US and Latin America and potential lessons for Asia and (ii) arbitration under Competent Authority vs under Bilateral Investment Treaties for tax disputes

Tax Arbitration – Alternative Dispute Resolution Whose Time Has Come for Asia?
• The state of tax arbitration in Asia, is it still nascent and what is the potential?
• Resistance in giving up sovereignty and other potential issues
• Perspectives from India (Vodafone and Cairn Energy), Philippines, Singapore

About the Presenter(s)/ Trainer(s)

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Professor Leslie Chew
Senior Consultant
RHT Law Asia LLP

Professor Leslie Chew, Senior Counsel, is the founding and current Dean of the School of Law at the Singapore University of Social Sciences. He has practised law in one form or another for over 4 decades. He was appointed Senior Counsel in 2000. In 2007 he was appointed a judge in the State Courts where he remained until his retirement in 2014. At the State Courts he was the Senior District Judge leading the Civil Justice Division. He retired from the judiciary in 2014. Upon his retirement from the Singapore Legal Service, he returned to law practice. Currently, he is a Senior Consultant at RHT Law Asia LLP. He has an active practice as an arbitrator in International Commercial Arbitrations.

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The Honourable Chief Justice Eugene P. Rossiter
International Association of Tax Judges

The Honourable Chief Justice Eugene P. Rossiter was educated at St. Francis Xavier University (BBA 1974) and Dalhousie University (LLB 1978). He was called to the Bar of Prince Edward Island in 1978 and appointed Queen’s Counsel in 1991. From 1978 to 2006, he was Senior Partner at Stewart McKelvey (formerly Stewart McKelvey Stirling Scales, Scales Jenkins McQuaid). Mr Rossiter was appointed Judge of the Tax Court of Canada in 2006, Associate Chief Justice of the Tax Court of Canada in 2008 and Chief Justice of the Tax Court of Canada in 2014. He became a founding Director and Secretary General of the International Association of Tax Judges (IATJ) in 2010 and has been President of the IATJ since 2011.

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Mr Sam Sim
Senior Advisor
Vienna University Global Tax Policy Centre
Accredited Tax Advisor (Income Tax)

Sam Sim, LLM (NYU LLM), MA (Cantab), is board member of Tax Analysts, member of International Association of Tax Judges and Tribute Arbitration expert panel member. He was former Regional Vice-President (EMEA, Asia and Latin America) and Asia President of the Tax Executive Institute and Chair of the Capital Markets Tax Committee TP Sub-Committee. Sam is passionate in digital taxation having served as an expert to the United Nations on digital taxation Pillar 1 and a consultant to the Asia Development bank. He has also taught transfer pricing and digital taxation at SUSS School of Law Master of Taxation programme for 10 years and serves as a senior advisor to the Vienna University Global Tax Policy Centre and a research fellow at the SMU Centre for Artificial Intelligence and Data Governance. He brings industry experience to bear in his academic pursuits having led global and regional teams at a Forbes 50 US IT multinational enterprise and a FTSE 100 financial institution.

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Mr Hans Mooij
Tribute Arbitration

Hans Mooij is an independent tax counsel specialising in international tax compliance and controversy. He assists corporate clients as well as governments. As tax treaty consultant he has worked for various international organisations including OECD, United Nations, and IMF. He is visiting Professor at the International Tax Centre (ITC) Leiden, and at the University of Amsterdam School of Law, in the Advanced LLM International Tax Law program it organises jointly with IBFD. Before entering private practice, he, for many years, served the Netherlands Government as tax treaty negotiator, as Competent Authority in tax treaty matters, as prime litigator in tax treaty and EU law cases before the Dutch Supreme Court and the Court of Justice of the European Union, and as delegate to the OECD Working Party No 1 on the Model Tax Convention and member of its Steering Group. He chairs the TRIBUTE organisation, an independent, global initiative of leading experts in international taxation, which seeks to spread awareness of tax arbitration and tax mediation among the global tax community and avails experts for appointment as arbitrator, mediator or technical advisor in disputes on tax treaty or cross-border tax issues.

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Mr Lee Harley
Acting Head of the Tax Treaty Unit
OECD’s Centre for Tax Policy and Administration

Lee Harley is the Acting Head of the Tax Treaty Unit, withinthe OECD’s Centre for Tax Policy and Administration. Prior tojoining the OECD in 2018, Lee spent five years as a tax treatynegotiator for the United Kingdom, also serving as a delegateto Working Party 1 and an observer at the UN Tax Committee.As a treaty negotiator and competent authority, Lee oversawthe resolution of disputes under the mutual agreementprocedure outside the transfer pricing sphere. Between 2011and 2013 Lee served as the UK delegate to JITSIC, based inWashington DC, and prior to that he held a number of policyroles in Her Majesty’s Revenue & Customs, advising HM Treasury ministers on domesticand international tax matters and delivering legislative products such as the DivertedProfits Tax. In his current role, Lee is closely involved in the development of the Pillar Oneand Two solutions to the tax challenges arising from digitalisation and the ongoingimplementation of the treaty-related BEPS measures, including via the MLI.

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Mr H. David Rosenbloom
International Tax Program

H. David Rosenbloom became the director of the International Tax Program in 2002. He is a member of Caplin & Drysdale, Chartered, a firm he re-joined in 1981 after serving as International Tax Counsel and Director, Office of International Tax Affairs, in the US Treasury Department from1978 to 1981. He has also served as tax policy adviser for the US Treasury, the OECD, AID, and the World Bank in Eastern Europe, the former Soviet Union, Senegal, Malawi, and South Africa. Rosenbloom’s major areas of practice include international tax controversies, transfer pricing planning and disputes, advance pricing agreements, the foreign tax credit, tax treaties, financial products and financial institutions, and international aspects of corporate and individual tax planning. He is the author of numerous articles on international tax issues.

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Mr Jorge Espinosa
Managing Partner
EGB Abogados

Jorge Espinosa is Managing Partner at EGB Abogados, Director of the Board WTS Global, member of the Board of Lataxnet and professor at the Universidad Católica de Chile. He is an Attorney at Law and expert on international tax. Mr. Espinosa studied his degree and LLM in tax law in the Universidad de Chile, and an International Tax Program (ITP)at Harvard Law School. He is a PhD candidate at UCL Louvain, Belgium. Founder and former member of the board of IFA Chile, and former member of the board of the Chilean Institute of Tax Law. He worked for the Chilean government as head of the cabinet and was a legal advisor at the Labor Ministry. Nominee as one of the final candidates for Director of the Internal Revenue Service of Chile.

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Associate Professor Darren Koh
Vice-Dean (School of Law)
Singapore University of Social Sciences
Accredited Tax Advisor (Income Tax)

Associate Professor Darren Koh graduated top of his Bachelor of Law class at the University of Buckingham, winning the Maxwell Law Prize for his year, and was called to the Bar in England & Wales in 1989. He is also a Chartered Accountant (England and Wales) and a Chartered Tax Adviser (United Kingdom). He embarked on a tax career in public practice with PricewaterhouseCoopers in London and KPMG in Hong Kong, and in industry with Procter & Gamble. He has also spent 2 years in International Law with a branch of the Security Council of United Nations known as the United Nations Compensation Commission, advising Commissioners on the verification and valuation of war reparation claims filed against Iraq after the first Gulf War. He returned to Procter & Gamble after his stint at the UN, and finally left Procter & Gamble as Associate Director for the ASEAN/Australasia/India region to pursue a career in academia. His career has taken him around the world from London to Hong Kong, to Kobe, to Geneva, to Singapore, to Cincinnati, Ohio and back again to Singapore. He obtained his Master of Laws (awarded with Merit) from the University of London, and joined the School of Business of SIM University (now the Singapore University of Social Sciences) as firstly as Head of Area – Taxation and Business Law, and is now the Vice-Dean of the School of Law as well as the Head of Programme – Master of Taxation.

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Ms Kim S. Jacinto-Henares
Founder & Director
RegTek, Inc.

Kim S. Jacinto-Henares, from the Philippines, is an International Consultant providing tax, legal and management consultancy for various entities, domestic and international. Concurrently, she is a Senior Adviser with Albright Stonebridge Group. She is one of the founders and Director of RegTek, Inc., a Filipino-Estonian joint venture company focused on establishing sustainable digital identity systems to national as well as to corporate clients to make any digital transaction secure and trusted and offering full range of competency on digitalisation and cybersecurity. She is one of the Commissioner in the Independent Commissioner for the Reform of International Corporate Taxation or better known as ICRICT. ICRICT is a group of leaders from around the world that believes there is an urgent need and an unprecedented opportunity to bring about significant reform of the international corporate taxation, and aims to promote the reform debate through a wider and more inclusive discussion of internal tax rules than is possible through any other existing forum; to consider reforms from a perspective of global public interest rather than national advantage; and to seek fair, effective and sustainable tax solutions for development. She is also a member of the Board TRIBUTE Foundation for International Tax Dispute Resolution, an expertise center for international tax dispute resolution which aims to promote and support effective approaches for alternative, out-of-court resolution of international tax disputes. She was a member of the UNESCAP Eminent Expert Group on Tax Policy and Public Expenditure Management and was a member of the UN Committee of Experts on International Cooperation in Tax Matters. Until recently, she served as the Commissioner of the Philippines Bureau of Internal Revenue. She, as a representative of her country, had been an active participant in OECD Global Forum’s Transparency and Exchange of Information and OECD Global Forum’s Base Erosion and Profit Shifting.

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Mr Mukesh Butani
Founder & Managing Partner
BMR Legal, India

Mukesh Butani is Managing Partner at BMR Legal and an acknowledged expert on international tax and transfer pricing. He is a former international tax partner of "big four" accounting firms and a board member of Tax and, an international network of leading tax firms. Mr Butani served as a member of the OECD's business restructuring advisory group, and is presently Vice-Chairman of the International Chamber of Commerce (ICC) Taxation Commission, member of the United Nations Sub-Committee of Tax Experts on Transfer Pricing and Tax Dispute Resolution, member of the Tax Bureau of the OECD-BIAC. He is a member of the International Fiscal Association's Permanent Scientific Committee (2010 to 2016). Mr Butani is author of the acclaimed treatise “Transfer Pricing - An Indian Perspective”, and has co-authored IBFD’s "Transfer Pricing & Customs Valuation" and "Transfer Pricing & Business Restructuring"

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Professor Yansheng Zhu
Associate Director
Centre for International Tax Law and Comparative Taxation in Xiamen University

Yansheng Zhu is a professor at the Law School of Xiamen University (XMU), the associate director of the Centre for International Tax Law and Comparative Taxation in XMU. His academic expertise is in the tax law and commercial law, specialising in international tax law, international investment law and Chinese company law and trust law. He published many articles, books within or outside China, such as Principle of Permanent Establishment in Tax Treaties (Law Press, China,2006), International Tax Law (co-authored and co-edited, a textbook for undergraduate students, High Education Press, China, 2008), Europe-China Tax Treaties (Co-authored, Kluwer Law International, 2010), The Impact of Bilateral Investment Treaties on Taxation, (Coauthored, IBFD, 2017) and Implementing Key BEPS Action: Where Do We Stand?(Coauthored, IBFD, 2019). He was a visiting scholar at Boston University Law School in 2003-2004, a visiting professor at the National Taiwan University Law School from April to June in 2009, and a Fulbright Scholar at Georgetown University Law Centre in 2011-2012. He served as a member of the Subcommittee on Tax Treatment of Services of the UN Committee of Experts on International Cooperation in Tax Matters in 2014-2016. He received his LLB, LLM, and JSD from Xiamen University. Currently, he is vice-chairman of the Society of Fiscal Law in Fujian Province of China, and a member of the Standing Council of China’s Society of Fiscal Law. 


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