The arbitrability of investor-state taxation disputes in international commercial arbitration

Despite the expanding scope of arbitrability in recent times, the arbitrability of tax disputes remains an unsettled issue. While it has been a hotly discussed topic in the field of international investment arbitration, it also warrants attention in the context of international commercial arbitration. In particular, the arbitrability of investor-state taxation disputes in this area raises a number of challenging issues. Accordingly, this article provides an in depth examination of the arbitrability of investor-state taxation disputes in international commercial arbitration. It concludes that traditional concerns regarding the arbitrability of tax disputes do not, in principle, support the inarbitrability of all tax disputes. Rather, there is a logical distinction to be drawn between taxation disputes that directly implicate the sovereignty of states, and disputes as to taxation that are merely contractual in nature, and only involve taxation indirectly. In reaching this conclusion, this article also yields some insights into both the question of which law should govern arbitrability and also into the nature of arbitrability more generally, in the light of the developments that have occurred in this area.