Press "Enter" to skip to content

S.Africa: MFN clause in RSA and Netherlands DTA and some additional info

Read the latest PwC Synopsis on the case first:

The Most Favoured Nation clause appears in the General Agreement on Trade (GATT) and General Agreement on Trade and Services (GATS) of the WTO.

Most nations are members of the WTO, and the agreement would be considered to be customary international law.
The MFN and discriminatory clauses in GATS are widely drafted, with a few exceptions – one is where there is an overriding DTA.
However, subject to further research, if a tax benefit such as no WHT is payable on dividends between e.g. Netherlands and RSA , other countries who are members of the WTO
may take advantage of the MFN and discrimination clauses to argue the same position against RSA. The converse would potentially apply as well.
The disadvantage as representations to the WTO must be made through government.
Here is an example of a WTO ruling applying to a discriminatory situation between the US and China:
PwC are incorrect in stating that S.Africa is not bound by the Vienna Convention:
The Office of the State Legal Advisor says the following about SA being bound by the Vienna Convention referred to in the Dutch case in the PwC Synopsis. The article incorrectly states SA is not bound:

“International agreements are an indispensable tool of diplomacy and much of daily life activities are governed by international agreements. All types of daily activities involving more than one state such as telecommunications, air transport, trade etc that are taken for granted will not be possible without international agreements being in place to regulate these activities.

International agreements are governed by the law of treaties, which is one of the cornerstones of international law. The Vienna Convention on the Law of Treaties (Link to pdf) that was signed in 1969 and entered into force in 1980 is a multilateral treaty and a mixture of the codification of existing international treaty law and the progressive development thereof. It is regarded as declaratory of customary international law and binds all states regardless of whether they are a party to it or not.

South Africa is not  a party to the Vienna Convention on the Law of Treaties, but is bound to the provisions of the Convention.”