Transnational Corporations - Volume 25, Issue 3, 2019

As the complexity of transnational corporations (TNCs) grew in the post-war period, their effective degree of disclosure diverged from what is standardly expected of single-country firms. Country-by-country reporting is the key proposal to reestablish appropriate TNC disclosure, and ultimately TNC accountability – and as such, has been consistently resisted by many TNCs, professional services firms and some key headquarters countries in the Organisation for Economic Cooperation and Development. This paper charts two main waves of pressure for progress. The first, most visible from the late 1960s to the early 1980s, reflects the claims of the New International Economic Order and the rise of the G77 group of countries, while the second saw international civil society take a leading role. The current phase sees these two impulses combine and may finally deliver meaningful progress. The paper addresses both the political underpinnings and the developing technical component to the claims for deeper TNC disclosure, ultimately shaped into the pursuit of an international standard for public, country-by-country reporting – and the resistance to it. The paper also provides illustrative results based on the existing country-by-country reporting data for banks. It concludes with a discussion of the prospects for country-by-country reporting.

This paper traces the history of international corporate taxation, discusses how transnational corporations (TNCs), through their tax advisers, have helped to shape the system, and suggests that this is important in understanding the development of TNCs. It argues that a key competitive advantage of TNCs is their ability to exploit differences in corporate tax rules, as a form of regulatory arbitrage, which is facilitated by the inadequate coordination of those rules. It focuses on the divergence between the understanding in business, economics and international studies that TNCs are unitary firms and the principle which has increasingly hardened in international tax rules, especially on transfer pricing, that the various affiliates of TNCs in different countries should be treated as if they were independent entities dealing with each other at arm’s length. It argues that this facilitates tax avoidance, which is one of the strategies of the exploitation of regulatory differences, or regulatory arbitrage, which has contributed to the growth and oligopolistic dominance of large TNCs. While claiming that they merely obey the laws of each country where they do business, TNCs have taken advantage of their global reach to mould laws and normative practices, and develop structures taking maximum advantage of the loose coordination of global governance regimes.

This paper examines the use of the “value creation” concept that plays a central role in current OECD/G20 and European Union taxation work as a way of determining the taxation rights of countries, especially in the increasingly digitalised economy. It examines the likelihood of a consensus on whether it is an appropriate test, particularly with a view to the interests of developing countries. It also notes the need for such countries to ensure that their “policy space” in corporate taxation that is based on the place of consumption is not unduly limited by these developments.

The investment treaty network and the tax treaty network comprise more than 3,000 treaties each. The provisions of these treaties generally are highly customized on the basis of the investment flows and economic interests of the contracting States. The number of treaties in force and their customization potentially turn the amendment of these treaty networks in their entirety into a cumbersome and long process. To modify the treaty networks in a swift and coordinated manner, the investment treaty makers and the tax treaty makers almost contemporaneously developed the idea of implementing treaty changes through a single multilateral convention. On 10 December 2014, the United Nations adopted the Convention on Transparency in Treaty-based Investor–State Arbitration, also known as the Mauritius Convention. In addition, on 24 November 2016, the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (BEPS), commonly referred to as the Multilateral Tax Instrument, was concluded under the aegis of the Organisation for Economic Co-operation and Development (OECD). The Mauritius Convention and the Multilateral Tax Instrument share the object and purpose of modifying an extensive number of treaties. However, due to their novelty, little research has been done until now on their common characteristics and differences. The article aims at filling this gap by comparing both multilateral conventions. It also aims at drawing lessons from the analysis of both multilateral conventions that might be of benefit for future modifications of an extensive number of treaties through a single instrument.

Tax revenues from multinational enterprises (MNEs) are an important source of public finance in developing economies. The research and policy debate so far have mostly focused on the “missing” part, i.e. the government revenues lost due to the tax avoidance practices of MNEs (Bolwijn et al., 2018). In this study, we take a different, but complementary, approach, looking at the taxes and other revenues actually paid by foreign affiliates of MNEs to developing-country governments. We present two alternative methodologies to estimate foreign affiliates’ fiscal contribution – the contribution method and the foreign direct investment (FDI) income method – and show that they lead to the same order of magnitude. The findings allow us to set a baseline for an informed discussion on tax avoidance by MNEs.