This thesis analyses whether the existing international framework for allocation of rights to tax active business income can be considered fair or equitable from the perspective of Brazil, India, and China (the BICs) and suggests steps that could be taken in the short and medium terms to advance fairness. Chapter I highlights the challenges in the framework from the standpoint of the BICs and also other developing countries. It is argued that an understanding of these concerns is important to achieve the OECD's Base Erosion and Profit Shifting project's aim of a certain and stable arrangement. Chapter II contends that fairness in both the rule-making process and the rules is critical to this end. Chapters III-V examine the evolution and development of the prevailing rules for division of rights to tax active business income and the key aspects of these rules from the BICs' perspective based on the parameters for assessing procedural and substantive fairness established in chapter II. It is discussed that the BICs either had no or ineffective participation in the formulation of these rules. Resultantly, the BICs diverge from some of the basics of the rules towards positions that better account for these countries' contributions in the generation of global profits. Chapter VI proposes enhancing the authority and legitimacy of the UN's Committee of Experts on International Cooperation in Tax Matters as both a short and medium term option for fairer international taxation rule-making for the BICs, and, importantly, other developing countries as well. Chapter VII suggests a significant economic presence test for nexus along with a low rate withholding tax, and the greater use of the profit split method as steps towards a fairer allocation of taxing rights from the perspective of the BICs. Further analysis of theoretically superior but longer-term alternatives, such as global formulary apportionment, is also recommended.

The thesis examines the relationship between the political economy and the rule of law in contemporary Pakistan. The premise is that the rule of law can be meaningfully studied if the undercurrents of the political economy are explored. It investigates the rule-of-law-based reforms pushed by the International Financial Institutions (IFIs) that are meant to promote a level playing field for intra-capital relations, and to regulate relations between capital and the state. The institutional governance reforms of the IFIs are analysed from 1999-2004 within the historical context. The thesis presents two case studies of the IFIs reforms: a tax law (General Sales Tax in the Value-Added Tax mode), and a corporate governance regulatory body (the Securities and Exchange Commission of Pakistan). The third case study is about the textiles sector. In the productive textiles sector, the interplay of the rule of law and political economy is explored. This case study discovers caste capitalism even in the formal textiles sector. Here the lack of impersonalisation and the weak rule of law encourages reliance on the social structures that lead to perpetuation of business networks along the caste lines. Personalisation in the textiles sector in Pakistan comes from the society being in the transition phase. The textiles case study concludes that the textiles manufacturers do not want more mature capitalism. There is a political economy explanation to the resistance to the rule of law. We present an analysis of how IFIs institutional governance reforms are resisted by the capitalist and intermediate classes. This leads to these reforms having only limited success. The rule-violating behaviour of the capitalist class and the intermediate classes has led to varying impact on accumulation - ranging widely from theft of resources, investment in value-enhancing activities, to no significant impact. The rule-violating behaviour presented in the case study chapters is viewed in terms of the transition of a traditional society to a modern 'Weberian' state. The background literature review discusses the notions of the Weberian rationalbureaucratic state, the rule of law and impersonalisation. The literature review also discusses the underlying structural basis of power in society, patron-client relationships, the politics of patronage and the need for rents creation for maintaining political stability. The thesis presents a nuanced analysis illustrating a spectrum of contestations between the forces which wish to promote the pro-market rule of law against those who resist it. Studying such a contestation enables the thesis to make a contribution in the overall understanding of the political economy and the rule-violating behaviour in the middle income countries such as Pakistan.

A GAAR is controversial: it confers great powers on tax officials but has not provided a complete solution to tax avoidance. Nevertheless, the idea of a GAAR has spread worldwide. Tax avoidance is not exclusive to advanced economies but also harmful to developing countries. International Financial Institutions have recently recommended a GAAR 'menu or tool kit' for developing countries. However, a number of differences between developed and developing countries suggest they should have different approaches in this field. There has been little research on adequate tax reforms for these countries. This thesis addresses this lacuna by discussing a workable GAAR for major developing countries. It considers the lessons from selected countries and what can be adapted to developing countries' circumstances. Comparative taxation is a useful tool to identify similarities and differences between systems, to provide a framework for comparing potential solutions to common policy issues and to promote law reform. The research acknowledges the limits to comparative taxation and the cautions needed in legal transplants. The design analysis focuses on the primary common elements of GAARs - scheme or arrangement, tax benefit and purpose - and secondary, nonessential tests - reasonableness, artificiality, abnormality, substance-over-form, economic reality, business purpose, non-tax purpose and abuse of law. The analysis is based on statutory provisions, discussion papers and case law mainly. Given that discretion is an unavoidable feature of GAARs, the thesis discusses how this power can be limited to provide a balance between protecting the tax base and securing legitimate tax planning. This thesis assumes that a GAAR may bring uncertainty to any system. Nonetheless, the hypothesis is that a narrowly drafted GAAR containing clear criteria and essential taxpayers' safeguards- although this may restrict its scope of generalitycan be an appropriate measure for developing countries.

The central question in this thesis asks how the rule of reason, the standard of reasonableness and the principle of proportionality may function in assessing fair individual taxation and efficient and fair tax systems. This question is answered by investigating the case law of selected jurisdictions on the standard of reasonableness and the principle of proportionality particularly regarding human rights and international trade in their interaction with taxation. This work also discusses how the international canons of taxation, (equity, certainty, and economy) may be balanced via proportionality coupled with reasonableness. Would there be an optimal solution to combine those canons and other fundamental tax principles? How would be possible and desirable in terms of efficiency and fairness to apply an international standard of reasonableness in tandem with the principle of proportionality to tax issues that have reciprocal consequences in different jurisdictions, such as cross-border situations addressing tax avoidance, fiscal supervision, non-discrimination, and other tax issues that may go to the foundations of many tax systems? The hypothesis that is also tested is whether they may be regarded as overarching principles of law. The above fundamental questions are also posed in the light of international human rights that may be the ground and the foundation for fair taxation. Nevertheless, it is worth noting that the subject of this thesis is proportionality and reasonableness in the interaction of fundamental freedoms, fundamental rights - with some regard to trade and taxation. The focus is not on any specific issues that are analysed as an illustration of how those principles may work and whether or not they achieve fairness.

This thesis examines the treatment of tax in investor-state arbitration of expropriation and national treatment protection. The root of the study is the special characterisation of tax in the sovereignty of the state and the consequent sensitivity of states to have their tax policies being the subject of private adjudication. Tax has in the past been characterised as a non-arbitrable matter, but that is true only if states have purposefully deemed them so under the international investment treaties that they are party to. Tax is generally arbitrable under the expropriation provisions of international investment treaties, but states are seldom found liable for tax expropriation. National treatment, on the other hand, is generally not arbitrable under international investment treaties, but when an investment treaty permits the arbitration of alleged national treatment tax violations, violations are affirmed in more cases than not. The reason behind the comparable success rates is the difficulty in proving the existence of expropriation by taxation whereas national treatment tax violations are comparatively easier to substantiate. This thesis establishes what constitutes a tax expropriation, and how the success rate of claims for national treatment tax violations justifies the general exclusion of the application of national treatment protection to tax matters for sovereignty retention. In order to achieve the foregoing, this thesis examines sovereignty and the sovereign power to tax; the relinquishment of tax sovereignty under international investment treaties; the arbitrability of tax and the reasoning behind the reluctance of states to submit tax disputes to arbitration; the capability of tax to be expropriatory; the fundamentals of the expropriation standard under customary international law and international investment treaties and how they are applied by arbitral tribunals in tax expropriation claims; and the fundamentals of the national treatment protection and how they are applied by arbitral tribunals in claims for national treatment tax violations.

The thesis tries to provide an answer to the problem of tax avoidance. For this purpose a reinterpretation of taxes as practices of mutual recognition is defended. The conception of taxation and tax law defended in the thesis contrast sharply to the merely instrumental or functional conceptions of taxation and tax law that dominates today’s common understanding of taxation and tax law. The thesis lays out the basis for a new general theory of tax law, but does not develop in detail each of the elements of such a theory. The thesis first lays out the problem by analysing different definitions of tax avoidance, tax evasion, and tax planning, as well as their shortcomings. From that discussion, it emerges that the ways in which tax avoidance has been conceptualised are not only unclear but they also fail to produce any relevant insight into the problem of tax avoidance. The thesis then relates those shortcomings to what it calls the classical paradigm of tax law, which leads, in turn, to the contemporary general theory of tax law. A combination of these conceptions – of the substance (function) and form of tax law – explains that the structure of tax law is based on a conception of the obligation to pay taxes in which there is space for tax avoidance. The thesis argues that, in doing so, the purpose of tax law is defeated. Recent alternatives to the contemporary general theory are also analysed and critically evaluated. The second part of the thesis develops the positive aspect of the argument, in three connected moves. First, an argument is provided to prove that both liberal egalitarian and luck egalitarian theories of justice are not able to offer an answer to tax avoidance because they consider taxes and tax law to be mere instruments for redistribution. Second, a substantive reinterpretation of taxation as a practice with an internal good is presented, in which mutual recognition is defended as taxation’s internal good. Finally, an argument for the thesis that the best possible understanding of tax law requires us to interpret it as a teleological institution is provided. With this positive programme, the thesis aims at providing a superior alternative to the merely instrumental conception of taxation and tax law that derives from the classical paradigm presented at the outset. Its superiority is evidenced by the fact that the alternative provided can offer us the conceptual resources to understand the problem of tax avoidance and hence of what tax law is about.

Cette thèse se fonde sur les résultats d’une enquête sur les représentations de la déviance fiscale construites par l’opinion publique en France et donne une réponse nouvelle à la question du consentement à l’impôt. Mêlant les méthodes quantitatives et qualitatives et se situant au carrefour de la science politique, de la sociologie, de la philosophie et de la psychologie, cette enquête révèle la manière dont la considération des représentations de la déviance fiscale peut conduire à la construction du civisme fiscal. En partant de l’influence des valeurs et des normes sous-jacentes aux représentations des évitements légaux et illégaux de l’impôt sur le comportement du contribuables, cette thèse propose une réflexion sur la nécessité d’un dépassement de l’opposition binaire entre le légal et l’illégal imposée par les réponses administratives et judiciaires aux évitements de l’impôt. Pour être efficace, la lutte contre l’« insécurité fiscale », pensée comme une voie de sortie possible de la crise économique, doit se construire dans et par la réappropriation citoyenne de la question fiscale et dans la défense d’une conception particulière du juste soutenue par un renouvellement du contrat social fiscal. / This dissertation is based on the results from a survey on the representations of tax deviance constructed by public opinion in France and gives a novel answer to the question of tax compliance. This research, situated at the crossroads between political science, sociology, philosophy and psychology, uses both quantitative and qualitative methods to reveal how the consideration of tax deviance representations can lead to the construction of fiscal civism. Looking first at the influence of values and norms which underlie the representations of legal and illegal tax avoidance on taxpayers’ behavior, this dissertation offers a reflection on the need to move beyond the binary opposition between the legal and illegal imposed by the administrative and judicial responses to tax avoidance. In order to be efficient, the fight against “fiscal insecurity”, considered as a possible way out of the economic crisis, must construct itself in and by the civic reappropriation of the fiscal question and in the defense of a particular conception of fairness supported by a renewal of the fiscal social contract.

L’étude de la réalité de la criminalité démontre que celle-ci a essentiellement un but économique. L’aspect financier peut aussi être un moyen significatif, notamment dans le cas du terrorisme. Pourtant, la réponse à la criminalité ne prend que très peu en compte la réalité économique de la criminalité et est tournée, de façon historique, vers la sanction physique. Le droit pénal concurrençant le droit fiscal, y compris sur des infractions de nature économique. Partant de ce constat, il devient nécessaire de faire évoluer la réponse à la criminalité afin de mieux répondre à cette réalité. Parmi les moyens déjà existants, le droit fiscal représente de nombreux avantages, notamment par le fait qu’il est conceptuellement tourné vers la lutte contre les flux financiers illicites, que ceux-ci soient ou non d’origine criminelle. Si le corpus juridique lié à la lutte contre la criminalité est peu tourné vers le droit fiscal, les quelques cas présents démontrent que celui-ci a un apport significatif, notamment par les moyens dont dispose l’administration fiscale (même s’ils sont sous-utilisés) en matière de recherche d’informations relatives aux flux financiers. La lutte contre la criminalité gagnerait aussi en efficacité si le paradigme de la réponse pénale était changé. Il faudra pour cela adopter une approche économique à l’instar de l’approche et des moyens mis en œuvre dans le cas de la fraude fiscale. Que ce soit en recherchant des sanctions économiques et non plus pénale ou en traitant l’environnement criminel comme un tout. / The study of the reality of crime shows that it has essentially an economic purpose. The financial aspect can also be a significant one, especially in the case of terrorism. However, the response to crime takes very little account of the economic reality of the crime and is, historically, based on criminal punishment. The tax law is in concurrence with the criminal law. In regard to this observation, it becomes necessary to change the response to crime in order to better meet this reality. Among the existing means, the tax law is representing several advantages, including the fact that it is conceptually directed to fight illicit financial flows, whether they are of criminal origin or not. If the body of law related to the fight against crime is not tax law oriented, the few existing cases show that it has a significant contribution, including the capacity of the tax administration (even though it is under-used) in research on information flows. The fight against crime could become much more effective if the paradigm of criminal law had changed. This change could be achieved by adopting an economic approach, like the approach and means used in the case of tax evasion. Whether seeking economic sanctions rather than criminal, or dealing with the criminal environment as a whole.

La crise des finances publiques de 2008 a entrainé la multiplication de révélations publiques par les médias de comportements d'évitement de l'impôt. La mobilisation internationale démontre la limite d'une action juridique nationale.La présente thèse part du principe selon lequel la portée juridique de la fraude fiscale devient limitée et la répression pénale s'avère insuffisante. La politique publique menée est désormais axée sur la déviance fiscale qui est une notion plus extensive et représentative de la réalité du phénomène de contournement des prélèvements obligatoires. Les mesures adoptées pour lutter contre les montages fiscaux concourent au rendement budgétaire en raison de l'enjeu du comblement des déficits publics.La thèse repose donc sur la démonstration de la difficulté de détermination même des comportements répréhensibles et sur la limite de la répression pénale. Cette partie a pour point de départ la difficulté d'appréhension des textes et la faiblesse des poursuites pénales. Elle s'appuie sur les textes les statistiques, et les révélations des organisations privées.Ensuite, la démonstration de l'importance du recouvrement qui se manifeste par l'organisation de la rapidité du paiement de l'impôt et la limitation des actions contentieuses.Cette partie s'appuie plus sur les témoignages des agents, magistrats, associations. / The public finance crisis of 2008 led to a proliferation of public revelations by the media of tax avoidance behavior. International mobilization demonstrates the limit of national legal action.This thesis proceeds from the principle that the legal scope of tax evasion becomes limited and penal repression is insufficient. Public policy is now focused on tax deviance, which is a broader notion and representative of the reality of the phenomenon of circumvention of mandatory levies. Measures adopted to combat fiscal arrangements contribute to budgetary performance because of the challenge of filling public deficits.The thesis is therefore based on the demonstration of the difficulty of determining even reprehensible behavior and on the limit of penal repression. This part begins with the difficulty of apprehending the texts and the weakness of the criminal prosecution. It relies on statistical texts, and revelations from private organizations.Second, the demonstration of the importance of recovery, which is manifested by the organization of the speed of payment of the tax and the limitation of contentious actions. This part relies more on the testimonies of agents, judges, associations.

This thesis explores the interaction between business and the system of taxation in Greece, from the mid-1950s to the late-1980s. The key finding is that the system of taxation was one of the components of the Greek economic environment that was posing difficulties to business and was perceived by entrepreneurs as an obstacle to their activities. The issues explored are a series of administrative weaknesses of the system, such as the insufficient organisation and bureaucratic rigidities of the tax services, the complexity and constant alterations of the tax laws, but also the problematic relations with the tax officers, who were often accused to be lacking in training, arbitrary in their decisions and sometimes also corrupt. This study contributes to the current debates about the Greek economy and the causes of the crisis affecting the country. In this respect, it also throws light on the big issue of tax evasion burdening the country’s fiscal system. However, the research also belongs to the wider literature examining entrepreneurship from a business history perspective, to that focusing on the relation between entrepreneurship and institutions, to the debates regarding the ways entrepreneurship is affected by the socio-political and economic environment but also to institutional analyses about taxation. The thesis comprises of an introductory chapter, five main chapters and a conclusion. The introductory chapter presents the topic and its importance and analyses the theoretical basis on which the study is sustained. It also refers to the primary sources and the secondary material used in the thesis. The first one of the main chapters offers key information about the system of taxation, the political system and the system of public administration in Greece. The next four chapters examine disadvantages of the tax system such as the complexity of legislation and the insufficient organisation of the tax services, presenting also entrepreneurs’ perceptions about the effects of such disadvantages. The analysis also presents the voices of other parts of society, such as politicians, tax professionals and ordinary citizens, with regards to such disadvantages and the broader dysfunctionality of the tax system. The conclusion chapter suggests a series of possible reforms that could be implemented in order to improve the functioning of the tax system today. It also analyses the ways in which this thesis contributes to Greek historiography, to institutional analyses about taxation, but also to the literature concerning the interaction between institutions and entrepreneurship and more precisely, the interaction between entrepreneurship and taxation.