The European Arbitration Convention on Transfer Pricing: Legal Fossil or Instrument of New European Governance?

This article provides an analysis of the European Arbitration Convention on Transfer Pricing focused on the ever-increasing role soft law is playing in the drafting and diffusion of international and European rules. The main argument of this survey is that, rather than an instrument at the border of Community law, the Arbitration Convention lies at the centre of a complex and innovative system of new European governance, in which a hard law instrument (the Convention) is supported by a soft law instrument (the Code of Conduct) and by monitoring and mutual learning mechanisms carried out by the Joint Transfer Pricing Forum (JTPF). These features help better understand the Convention's increasing application in practice as well as the remarkable impact of the Code of Conduct at national level, e.g., in Italian law.

Analyses of the European Arbitration Convention are mostly focused on a traditional legal approach and consequently tend to consider this instrument either as a mere international treaty outside the European legal framework or as a no man's land between Community law and ordinary international law or even as a sort of 'legal fossil', i.e., a legally obsolete instrument at the border of European law. These approaches have generally emphasized the Convention's drawbacks, especially with respect to the potential advantages related to its adoption in the form of a European directive according to the Commission's original design. In other words, according to these approaches the Convention is but a sort of second-best, a watered-down compromise which the Commission had to accept in the wake of the Member States' reluctance to waive their fiscal sovereignty in the transfer pricing field. In contrast to these approaches, this work puts forward an analysis of the Convention which stems from soft law's ever-increasing role in international law and in the European integration process. As will be shown in the remainder of this essay, this alternative vision allows to account for the remarkable impact the Convention is starting to have in practice, both at international and national level.