It is often difficult to reach mutual agreement through a negotiation process. This article explains how institutions can reduce this difficulty. It begins with a fundamental dichotomy of bargaining situations between zero-sum and mixed-sum cases. This dichotomy is then linked to the diversity of products – public, CPR, club and private – that the players want to manufacture through negotiation. The article then systematically links goods and institutions, with an emphasis on international regimes and international organizations. Finally, the problem of the creation of institutions is examined from different analytical angles. A country`s national tax rules that control non-residents and their institutions over their own residents may be inconsistent with certain principles of non-discrimination in bilateral tax treaties. Tax payers in these situations may use POPs to ensure equal treatment on the basis of the principles of non-discrimination of the applicable tax treaty. Communication between the authorities is confidential and access to the file is not granted, unless the taxpayer provides reflective documents for which the right of access to the file is granted. The exclusion of taxpayers should facilitate the search for solutions between the authorities, especially in the event of a compromise. It is inevitable that one or both authorities will abandon their original position in order to correct the assessment in question.
The first Swiss DBA of the first half of the last century already provided that POPs would avoid taxation contrary to an agreement. Switzerland has always carried out POPs. However, the number and amounts involved have increased considerably in recent times, particularly with regard to transfer prices. The reasons for this increase are multiple: increasing interdependence of companies and individuals internationally, development of the DTA network or international effort against profit transfers (for example. B OECD BEPS project). By calling the market a „competitive game” played by certain rules, Hayek emphasizes the inherent link between the markets of thought and the law. Given that the coordination of market measures is based on certain general rules of conduct that limit the behaviour of market participants, the result is that it is only when appropriate rules are in place that a market organisation can emerge and the specificity of the legal and institutional framework in which the markets operate will determine all of their working characteristics. Hayek (1960, p.
229) put it this way: „If there is to be an effective adaptation of the various activities in the market, certain minimum requirements must be met; the most important are … The prevention of violence and fraud, the protection of property and the execution of contracts, as well as the recognition of the equal rights of all people to produce and sell at any price. Even if these conditions are met, the effectiveness of the system will still depend on the specific content of the regulations. As a result, multinational companies facing cross-border litigation are well advised to proactively consider the use of POPs (as well as other alternative dispute resolution mechanisms, such as bilateral advance price agreements – ASA) when available, while pursuing their options along the usual national channels. A subject may appeal the national misapsing of a MAP DE agreement by the tax authorities, but not the MAP agreement between the contracting states.