by Alicia Nicholls
As of August 12, all Caribbean Community (CARICOM) Member States have now endorsed the Organisation for Economic Cooperation and Development (OECD) statement on a ‘Two-Pillar Solution to Address the Tax Challenges Arising From the Digitalisation of the Economy’ of July 1, 2021. The OECD statement, signed now by 133 member jurisdictions of the OECD/G20 Inclusive Framework, is not a fait accompli per se but has been described as a ‘conceptual agreement’ indicating their ambition for global tax reform. The stated purposes behind this latest phase of the OECD Base erosion and profit shifting (BEPS) initiative, described as ‘BEPS 2.0’, are to ensure that multinational enterprises (MNEs) “pay their fair share of tax” and to stop a “race to the bottom” in countries’ corporate tax rates. As such, pillar one of the two-pillar solution seeks to ensure a fairer distribution of profits and taxing rights among countries with respect to the biggest MNEs globally, in particular large tech companies. Pillar two – and the more controversial for our region – aims to prevent tax base erosion by setting a global minimum corporate income tax of at least 15%.
The technical details behind this solution remain to be worked out. As the statement notes, a detailed implementation plan and the remaining issues are to be finalised by October 2021. But what does this mean for the investment policies of Caribbean countries, especially in a COVID-19 climate where foreign direct investment (FDI) will be key to sustainable economic recovery efforts?
In its latest IIA Issues Note entitled “Recent Developments in the IIA Regime: Accelerating IIA Reform”, UNCTAD (2021) devotes several paragraphs to the possible impact that ongoing global tax reform efforts might have for international investment patterns and global and national investment policies and policy-making. UNCTAD (2021) identified several possible implications. One implication is that it would discourage multinational corporations (MNCs) from shifting profits and tax revenues to low tax-countries, and second, stop the race to the bottom among countries’ tax rates which have occurred over the past three decades.
Let us look at these first two implications. Not all Caribbean jurisdictions have low CIT rates, but some do, particularly those which have large international business sectors. A global minimum CIT, of course, would have implications for those countries (particularly low tax and no-tax jurisdictions) whose favourable tax regimes have traditionally been a key component of their value proposition to potential and existing foreign investors. Contrary to popular opinion, it is not only small island international financial centres (IFCs) which have made a favourable tax environment part of their investment attraction strategy, but some larger countries, including in the EU, such as the Republic of Ireland and Luxembourg.
The possible loss of business from raising their CIT to meet a possible minimum global CIT of 15% could have implications for the macroeconomic stability of countries dependent on FDI inflows, as well as possible loss of jobs. Governments would need to conduct the appropriate economic analyses to ascertain the potential impacts of raising their tax rates to meet the proposed global minimum CIT, if and when it is decided. The possible socio-economic implications must be considered and weighed.
A third implication raised by UNCTAD (2021), and what several Caribbean countries are currently undertaking, is the need to engage in a comprehensive review of their tax incentive regimes to attract investment. Indeed, those countries whose tax rate was their main value proposition will be forced to develop other areas of competitiveness which would make them attractive to global business. This, of course, is not a negative thing and could force our countries to build other areas of competitiveness and pay greater attention to accelerating on-going investment facilitation and wider business facilitation reforms.
A fourth issue raised by UNCTAD (2021), and which must be seriously considered, is the implications for host country obligations under international investment agreements (IIAs) signed. More specifically, should host States decide to raise their tax rates to the proposed minimum standard (once agreed), there is the possibility of legal exposure to investor-State claims brought by investors under IIAs, especially relying on nebulous clauses such as the fair and equitable treatment (FET) standard. This is a real possibility as the majority of Caribbean countries’ bilateral investment treaties (BITs) are older generation treaties with broad investor protections and few, if any, explicit provisions for State regulation in the public interest. Even where a host State ‘wins’ an ISDS dispute, the costs incurred through the need to hire (often foreign) legal representation and the negative press surrounding such a dispute might be just as harmful.
While the threat of possible treaty-based investor claims would not be a concern for those Caribbean countries with few or no BITs in force, those whose investment promotion strategies have historically relied on the signing of BITs should pay close attention to this possible unintended consequence as they formulate new tax regimes.
Caribbean IFCs are in uncharted and hostile global regulatory waters, and not for the first time. The ideal response would have been unity among affected countries to contest this latest blatant encroachment on our sovereignty, in particular, our ability to determine our own tax regimes and by extension, investment policies. However, it appears that many countries have decided that it was in their own national interests to sign on to the initiative because of the very realistic possibility of victimisation (through arbitrary blacklisting, for example) and reputational risk at a time when they are already dealing with the impact of de-risking practices by global banks. Another stated reason for joining is the prospect of influencing and shaping the developments from within. Let us hope that by having a seat at the table, we can at least ensure our voices will be heard in an initiative that is likely to be consequential for our Caribbean small island developing States at a time when we most need FDI inflows for a sustainable post-COVID-19 recovery.
Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. All views herein expressed are her personal views and should not be attributed to any institution with which she may from time to time be affiliated. You can read more of her commentaries and follow her on Twitter @LicyLaw.
