A Critical Analysis Of Taxation Claims In Commercial Arbitration: Jurisdictional Limits And Enforcement Challenges
- IJLLR Journal
- Aug 11
- 1 min read
Sainsha Malhotra, Narsee Monjee Institute of Management Studies, Bengaluru
ABSTRACT
The interface between the commercial arbitration and the taxation law is one of the most complex and disputed areas in modern dispute resolution. With the increase of cross-border commercial transactions and the broad taxing authority of the sovereign states, the issue of arbitrability of tax claims and enforceability of the arbitral awards against the fiscal obligations have become vital. The paper critically assesses to what extent claims in taxation are amenable to arbitration taking into consideration the jurisdictional limitations which come about due to the public law nature of taxation as well as the practical enforcement limitations that come about when the arbitral awards come into conflict with the governments revenue interests. Using an Indian legal framework, the law on arbitration and conciliation, 1996 with amendments, constitutional clauses on fiscal federalism and important judicial precedents, as well as a comparative examination of international investment treaty arbitration, the research finds that there exist endemic gaps in the legal structure of this interface. With the world trying to liberalise dispute resolution mechanisms, tax disputes still fail to be fully arbitral- cognisant, which leaves commercial parties in an uncertain juridical situation. The present paper proposes a balanced regulatory approach that will uphold sovereignty of the states in fiscal affairs but will create a mechanism that commercially linked tax cases will get effective and prompt redress in the form of arbitration.
Keywords: Commercial Arbitration, Taxation Claims, Arbitrability, Jurisdictional Limits, Enforcement, Investment treaty arbitration, Public Policy.
