Taxation and the Cross-Border Trade in Services: Rethinking Non-Discrimination Obligations

Abstract

This Article examines the conflict between tax and trade law principles in the tax treatment of a non-resident service provider. It explores that conflict through non-discrimination obligations found in the General Agreement on Trade in Services (GATS), regional trade agreements, bilateral trade agreements, and tax treaties. The interplay between these agreements has the potential to frustrate trade law objectives because States may impose discriminatory tax measures on non-resident service providers. Tax treaties can play an important role in providing a minimum non-discrimination obligation for tax measures impacting the cross-border trade in services. This Article proposes a new tax treaty non-discrimination obligation grounded in trade law principles.