Harnessing the Link between Constitutional Law and Tax Law through Constitutionality Reviews of the New International Tax Order

Abstract

This paper seeks to explore for further engagements between constitutional law and tax law, by scrutinising on the possibility of constitutionality reviews on the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (the MLI), which is at the heart of the new international tax order. The momentum has never been greater, for the new international tax law paradigm—that is, to prevent the creation of the opportunity for non-taxation—enshrined in the MLI has, arguably, resulted in norms that lack of justification. Constitutionality (judicial) reviews of these norms will establish a strong legal basis in concluding that the transposition of these norms into domestic laws conforms—or not—with the basic rights enshrined in the constitutions. This study finds that an effective constitutionality review presupposes, inter alia, the existence of independent (state)body—preferably a judicial body to whom a review power is prescribed by the constitution, whom are performing a balancing act on the competing interests within the MLI, and actively engaged in dialogues with foreign courts.