Actors in International Tax Law Making and Customary Law Formation

Presentation, by Frederik Heitmüller, at the TRICI-Law and GLOBTAXGOV Workshop on Customary International Law and its Interpretation in International Tax & Investment Law.

"Actors in International Tax Law Making and Customary Law Formation"

Frederik Heitmüller is a PhD candidate in the GLOBTAXGOV project at Leiden University’s Institute for Tax Law and Economics. He graduated in 2017 from a bi-national Franco-German study program in political and social sciences at the University of Stuttgart and Sciences Po Bordeaux with a master’s thesis on the
international political economy of taxation. He has interned at the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) and was appointed as researcher at the Tax Justice Network, before joining the GLOBTAXGOV project.

Presentation Overview:
While the interpretation of both written and customary law lies within the realm of doctrinal research, one of the main contribution of sociological and political approaches lies in providing answers to the following question: Why is the law as we find it at a given point in time? In this sense, I will examine the role that different societal actors play in the formation of international tax law and illustrate this with the example of the transplantation of the Base Erosion and Profit Shifting (BEPS) Minimum Standards into legal practice in different countries. The BEPS minimum standards were drafted by the OECD, endorsed by the G20 and more than 80 third states around the world as a response to a public outcry over aggressive tax planning strategies used by multinational enterprises. By reviewing previous literature as well as comments on the BEPS standards that have been written by various parties, I will describe 1) who the actors are that influence international tax law making, 2) what preferences they articulate, 3) how they interact with each other and which channels of influence they make use of, and 4) how the actors are in turn influenced by their institutional environment.

Thereby, I adopt a perspective rooted in “actor-centric institutionalism”. This framework is characterized by a compromise between according explanatory value to the intentional actions of rational actors on the one hand and institutions in which these actors’ are embedded on the other hand. Further, it puts attention primarily on actors at a meso-level, which means that it neither focuses on individuals nor large-scale organizations such as states but on organizations at the intermediate level (firms, bureaucracies, etc.).

I will show that contemporary international tax law and legal transplants of international tax standards into various countries are outcomes of a highly complex actor constellation, characterized by a multi-level setting (with international, domestic and transnational actors), many diverging interests but a fair amount of shared norms among many actors as well.

This analysis lays out a basis for the more granular case studies of the implementation of the BEPS minimum standards that will be conducted by the European Research Council-funded GLOBTAXGOV project in 12 different OECDand non-OECD countries.

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