ARTICLE X
Paragraph 5 of Article 26 (Mutual Agreement Procedure) shall be deleted and
replaced by the following paragraphs:
“5. Where, pursuant to a mutual agreement procedure under this Article,
the competent authorities have endeavored but are unable to reach a
complete agreement, the case shall be resolved through arbitration
conducted in the manner prescribed by, and subject to, the requirements
of paragraph 6 and any rules or procedures agreed upon by the
Contracting States, if:
a) tax returns have been filed with at least one of the Contracting States
with respect to the taxable years at issue in the case;
b) the case is not a particular case that both competent authorities agree,
before the date on which arbitration proceedings would otherwise have
begun, is not suitable for determination by arbitration; and
c) all concerned persons agree according to the provisions of
subparagraph (d) of paragraph 6.
An unresolved case shall not, however, be submitted to arbitration if a
decision on such case has already been rendered by a court or
administrative tribunal of either Contracting State.
6. For the purposes of paragraph 5 and this paragraph, the following rules
and definitions shall apply:
a) the term “concerned person” means the presenter of a case to a
competent authority for consideration under this Article and all other
persons, if any, whose tax liability to either Contracting State may be
directly affected by a mutual agreement arising from that consideration;
b) the “commencement date” for a case is the earliest date on which the
information necessary to undertake substantive consideration for a mutual
agreement has been received by both competent authorities;
c) arbitration proceedings in a case shall begin on the later of:
(i) two years after the commencement date of that case, unless both
competent authorities have previously agreed to a different date,
and
(ii) the earliest date upon which the agreement required by
subparagraph d) has been received by both competent authorities;
d) the concerned person(s), and their authorized representatives or agents,
must agree prior to the beginning of arbitration proceedings not to
disclose to any other person any information received during the course of
the arbitration proceeding from either Contracting State or the arbitration
panel, other than the determination of such panel;
e) unless any concerned person does not accept the determination of an
arbitration panel the determination shall constitute a resolution by mutual
agreement under this Article and shall be binding on both Contracting
States with respect to that case only; and
f) for purposes of an arbitration proceeding under paragraph 5 and this
paragraph, the members of the arbitration panel and their staffs shall be
concerned “persons or authorities” to whom information may be disclosed
under Article 27 (Exchange of Information) of the Convention.”