BYWATER INVESTMENTS LTD & ORS v FC of T; HUA WANG BANK BERHAD v FC of T

Judges: French CJ
Kiefel J
Bell J
Nettle J

Gordon J

Court:
Full High Court, Sydney

MEDIA NEUTRAL CITATION: [2016] HCA 45

Judgment date: 16 November 2016

Gordon J

89. All deliberative decisions by each appellant company to buy and sell Australian shares on the Australian Securities Exchange


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( " the ASX " ) were made by Mr Vanda Gould, who was based in Sydney. The companies ' officers were outside Australia, but they did no more than " rubber-stamp " the decisions made by Mr Gould in Australia. Is each company liable for Australian income tax because its " central management and control " or " place of effective management " is in Australia? The answer is " yes " . Each appeal should be dismissed with costs.

90. These reasons will summarise the facts relevant to the appeals, consider the decisions below and then turn to consider each appeal.

Facts

91. The following facts were found by the primary judge (Perram J) and were not contested by the companies.

Mr Gould

92. Mr Gould is an accountant based in Sydney.

Mr Borgas

93. Mr Peter Borgas conducts a corporate services business from Neuch â tel, Switzerland through Anglore SARL ( " Anglore " ). Mr Borgas is an office holder of Anglore, along with his wife and one other person.

JA Investments Ltd and MH Investments Ltd

94. JA Investments was incorporated in the Cayman Islands. It has only one shareholder and one director, Mr Borgas. MH Investments is another Cayman Islands entity. Since 2012, the sole shareholder in MH Investments has been Mr Borgas.

95. Mr Gould held the position of " Appointor " under JA Investments ' and MH Investments ' respective articles of association.

Hua Wang Bank Berhad

96. HWB was incorporated in Samoa under the International Companies Act 1987 (Samoa). Its shares are held by Pacific Securities Inc, another international company incorporated in Samoa. Before Pacific Securities became the shareholder, it issued a bearer debenture which provided that, whilst it was unredeemed, the rights of the members of Pacific Securities to vote or demand a poll were suspended. In 1998, the original secured debenture was converted to a registered secured debenture in the name of JA Investments.

97. During the period 2000 to 2007, the register of directors and secretaries for HWB reveals that there were several individuals and two companies, Westco Directors Ltd and Westco Secretaries Ltd, on the register. All the individuals, except for one, were employed by Asiaciti Trust Samoa Ltd ( " Asiaciti Samoa " ) in Samoa. Asiaciti Samoa is based in Apia, Samoa and one of its beneficial owners is Mr Graeme Briggs, the other individual on the register. Westco Directors was a member of the Asiaciti Group and all of the persons authorised to act on its behalf were or had been employees of Asiaciti Samoa. The directors of HWB largely met in Apia. HWB bought and sold a large number of shares on the ASX and made substantial profits from that activity in the 2004, 2006 and 2007 income years.

Bywater Investments Ltd

98. Bywater was incorporated in the Bahamas. Its two shares were held by Anglore. Anglore holds its shares in Bywater for MH Investments. Bywater had three directors: Mr Borgas, his wife and NTW Directors Inc, a company with an address in the Bahamas. Bywater ' s cashbook - its only corporate record - is maintained at the London offices of Lubbock Fine, a firm of accountants. Bywater is not required under the law of the Bahamas to have directors ' meetings. Bywater traded a large number of shares listed on the ASX and made profits from that activity in the 2002 to 2007 income years.

Chemical Trustee Ltd

99. Chemical Trustee was incorporated in the United Kingdom. Chemical Trustee ' s sole shareholder was Guardheath Securities Ltd ( " Guardheath " ), a company owned by the partners of Lubbock Fine. Guardheath holds the shares in Chemical Trustee as nominee for JA Investments. The directors of Chemical Trustee have at all relevant times been Mr Borgas, his wife and their son. All minutes of its board meetings record that the meetings were held in Neuch â tel, Switzerland and attended by Mr Borgas and his wife. Chemical Trustee bought and sold a large number of shares on the ASX and made substantial profits from that activity in the 2001 to 2007 income years, except for the 2005 year.


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Derrin Brothers Properties Ltd

100. Derrin was incorporated in the United Kingdom. Derrin ' s shareholders were Guardheath and another Lubbock Fine entity, Lordhall Securities Ltd ( " Lordhall " ). Guardheath holds the shares in Derrin as nominee for JA Investments. Lordhall holds 50 of its 1,050 shares in Derrin as nominee for JA Investments and the remaining 1,000 shares for MH Investments. The directors of Derrin were Mr Borgas and his wife. All minutes of its board meetings record that they were held in Neuch â tel, Switzerland and attended by Mr Borgas and his wife. Derrin traded shares on the ASX and made profits from that activity in the 2003, 2004 and 2005 income years.

Decisions below

101. Before the primary judge, the Commissioner ' s case was that Mr Gould was running each company from Sydney and, therefore, that was where the " central management and control " of each company was located. The companies contended that, whilst the directors were " perhaps heavily influenced by Mr Gould, [ they ] nevertheless still applied their minds to the discharge of their respective offices " [157] Hua Wang Bank Berhad v Federal Commissioner of Taxation 2014 ATC ¶ 20-480 at 16,449 [ 59 ] . . They contended that when this was taken together with factors such as the location of each company ' s incorporation, the " central management and control " (and for Bywater, Chemical Trustee and Derrin, the " place of effective management " ) was not in Australia.

HWB

102. In relation to HWB, the primary judge found it was controlled by JA Investments, and therefore by Mr Gould. The primary judge also found that the directors of HWB at all times acted on Mr Gould ' s instructions and " were never placed in a position where they had to exercise the slightest judgment " [158] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,495 [ 364 ] . . Although HWB ' s business was formally transacted by the employees of Asiaciti Samoa, every transaction it carried out was done on the instructions of Mr Gould.

103. As a result, the primary judge concluded that HWB had its " central management and control " in Australia and was therefore an Australian resident for tax purposes.

Bywater, Chemical Trustee and Derrin

104. The primary judge found that, as Mr Gould was the beneficial owner of JA Investments and could control its affairs by appointing additional members through his position as " Appointor " , he was the true owner of JA Investments and he had actual control of it. The same was true of MH Investments. His Honour also found that Mr Borgas " did nothing in relation to the affairs of JA Investments other than give effect to Mr Gould ' s will " [159] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,458 [ 110 ] . . Because of Mr Gould ' s ownership and control of JA Investments, the primary judge considered that it was " an inevitable consequence that [ Mr Gould ] owned and controlled Chemical Trustee " and that the Commissioner had established " an overwhelming case " to that effect [160] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,465 [ 145 ] , 16,488 [ 311 ] . . The primary judge concluded " that all of the decisions of Chemical Trustee were made by Mr Gould and that Mr Borgas was not involved in them in the slightest way " [161] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,488 [ 314 ] . . The primary judge reached the same conclusions in relation to Derrin and Bywater [162] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,492 [ 339 ] , [ 343 ] . .

105. The primary judge concluded that he was " satisfied that the directors of the [ companies ] exercised no independent judgment in the discharge of their offices but instead merely carried into effect Mr Gould ' s wishes in a mechanical fashion " [163] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,450 [ 60 ] . . As a result, the primary judge concluded that each of Bywater, Chemical Trustee and Derrin had its " central management and control " in Australia and was therefore an Australian resident for tax purposes. The primary judge also found that each of Bywater ' s, Chemical Trustee ' s and Derrin ' s " place of effective management " was in Australia, as " the key management and commercial decisions were made by Mr Gould in Sydney " , and that therefore international tax agreements did not relieve any of them from liability to income tax under Australian tax law [164] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,504 [ 430 ] ; see also at 16,505 [ 440 ] . .

106. The Full Court of the Federal Court considered there was " no reason to reject his Honour ' s findings on the evidence or to reject his Honour ' s reasons for his findings " [165] Bywater Investments Ltd v Federal Commissioner of Taxation (2015) 236 FCR 520 at 527 – 528 [ 17 ] . .

HWB ' s appeal in this Court


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107. HWB was not incorporated in Australia, but Samoa. HWB conceded it carried on business in Australia. Australia does not have a double tax agreement with Samoa.

108. If HWB was an " Australian resident " it was liable to pay income tax under s 6-5(2) of the Income Tax Assessment Act 1997 (Cth) ( " the 1997 Act " ), which provided that " your assessable income includes the * ordinary income you * derived directly or indirectly from all sources, whether in or out of Australia, during the income year " . Was HWB an " Australian resident " ? The answer is that it was.

109. " Australian resident " is defined in s 995-1(1) of the 1997 Act by reference to the Income Tax Assessment Act 1936 (Cth) ( " the 1936 Act " ). " Resident " is defined in s 6(1) of the 1936 Act and includes a company incorporated in Australia and, in some circumstances, a company not incorporated in Australia. Paragraph (b) of that definition provides that a company not being incorporated in Australia is a resident if it:

" carries on business in Australia, and has either its central management and control in Australia , or its voting power controlled by shareholders who are residents of Australia. " (emphasis added)

110. Did HWB have its " central management and control in Australia " for the purposes of par (b)? The answer is " yes " .

111. HWB did not contest the primary judge ' s finding that Mr Gould was the person who " controlled " HWB. Instead, HWB contended that its " real business " was " located at the place where the organs of the company exercise legally effective authority " . According to HWB, " the place where the organs of the company exercise control " will be determinative in identifying the place of " central management and control " even where those formal organs are doing " nothing more than rubber-stamping decisions made elsewhere " . That contention should be rejected. It finds no support in the text of the definition of " resident " in s 6(1) of the 1936 Act, in the authorities or in commercial reality.

" Resident " and s 6(1) of the 1936 Act

112. The definition of " resident " in s 6(1) of the 1936 Act draws a distinction between companies incorporated in Australia and those incorporated elsewhere. If a company is incorporated in Australia it will be an Australian resident. Parliament has explicitly chosen one formal aspect of a company ' s existence - incorporation - and deemed that to be determinative of whether a company is a " resident " . Notably, it has not done this for any other formal aspect of a company. HWB ' s contention ignores that feature of the statutory language. For example, if Parliament had intended to make the location of directors ' meetings determinative, it could have done so. But Parliament did not do so. Instead, for companies not incorporated in Australia, Parliament adopted language - " central management and control " - from common law authorities concerning residency. At the time the provision was enacted, that language was well understood to involve a factual inquiry; an inquiry to which the location of the various formal aspects of a company was relevant but not determinative.

113. The definition of " resident " in s 6(1) of the 1936 Act is multi-faceted. The definition records, and acknowledges, that a company can be incorporated outside Australia but nevertheless can have its central management and control within Australia. In its terms, it refers to " central management and control " . It does not in its terms, or implicitly, seek to limit that concept to the place where the organs of the company exercise legally effective authority. That it does not do so is not surprising. The breadth of the language chosen reflects commercial reality. What constitutes central management and control is a question of fact and degree and can and does account for a broad range of complex arrangements.

Authorities

114. HWB ' s contention also finds no support in the authorities.

115. The statutory language of " central management and control " derives from De Beers Consolidated Mines Ltd v Howe , where Lord Loreburn LC identified the principle " that a company resides for purposes of income tax where its real business is carried on ... and the


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real business is carried on where the central management and control actually abides " [166] [ 1906 ] AC 455 at 458. (emphasis added).

116. The authorities confirm that the location of a company ' s " central management and control " is a question of fact and degree [167] De Beers [ 1906 ] AC 455 at 458; North Australian Pastoral Co Ltd v Federal Commissioner of Taxation (1946) 71 CLR 623 at 630; [ 1946 ] HCA 17 ; Esquire Nominees Ltd v Federal Commissioner of Taxation (1972) 129 CLR 177 at 190; [ 1973 ] HCA 67 . . The question of where " central management and control " is located is answered by ascertaining " where the real business of the company is carried on, not in the sense of where it trades but in the sense of from where its operations are controlled and directed. It is the place of the personal control over and not of the physical operations of the business which counts " [168] Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 248 – 249; [ 1941 ] HCA 13 citing Egyptian Delta Land and Investment Co Ltd v Todd [ 1929 ] AC 1 at 25. See also Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1940) 64 CLR 15 at 19; [ 1940 ] HCA 33 ; Unit Construction Co Ltd v Bullock [ 1960 ] AC 351 at 365, 372. . So, what circumstances are relevant to identifying the location of a company ' s central management and control? The circumstances include, but are not limited to [169] See Koitaki Para Rubber (1941) 64 CLR 241 at 248; North Australian Pastoral Co (1946) 71 CLR 623 at 634; Esquire Nominees (1972) 129 CLR 177 at 190. :

  • (a) the location of the company ' s registered office;
  • (b) the residency of the company ' s directors;
  • (c) the residency of the company ' s shareholders;
  • (d) where the company ' s meetings, including its directors ' meetings, are held; and
  • (e) where the books of the company are kept.

Where the formal organs of the company are located is relevant but is not, and can never be, determinative.

117. The authorities consistently provide for and apply the test first set out in De Beers . In Esquire Nominees Ltd v Federal Commissioner of Taxation , the relevant circumstances were said to " strongly support the conclusion " that the taxpayer company was not a resident of Australia [170] (1972) 129 CLR 177 at 190. . However, in that case, the Commissioner contended that the " central management and control " was in Australia because the directors of the company " merely carried out directions given to them " by members of a firm of accountants in Australia [171] Esquire Nominees (1972) 129 CLR 177 at 190. .

118. At first instance, Gibbs J accepted that the firm " not only communicated to the [ company ] particulars of the scheme but advised the [ company ] in detail of the manner in which it should be carried out " [172] Esquire Nominees (1972) 129 CLR 177 at 190. . His Honour found that the firm had " power to exert influence, and perhaps strong influence " , on the company [173] Esquire Nominees (1972) 129 CLR 177 at 191. . But that was the limit of its control - the firm could not control the conduct of the company ' s business as a trustee company [174] Esquire Nominees (1972) 129 CLR 177 at 191. .

119. The directors of the company were in control of the company even though the decisions they made accorded with the wishes of the interests in Australia. Why? Because although the directors complied with the wishes of the Australian firm, they independently determined to implement the scheme because they assessed that the instructions were in the interests of the beneficiaries, having regard to the tax position [175] Esquire Nominees (1972) 129 CLR 177 at 191. . The factual inquiry was directed at ascertaining the decision-making process and was not limited to, or determined by, the location of the formal organs of the company. The analysis by Gibbs J on this point was not disturbed on appeal [176] See Esquire Nominees (1973) 129 CLR 177 at 209, 212, 220, 225. .

120. Unit Construction Co Ltd v Bullock concerned subsidiary companies of an English company [177] [ 1960 ] AC 351 at 359. . The subsidiary companies were incorporated in Kenya under Kenyan law and registered there [178] Bullock [ 1960 ] AC 351 at 362. . The companies were placed in the hands of their directors and the articles of association " expressly provided that directors ' meetings might be held anywhere outside the United Kingdom " [179] Bullock [ 1960 ] AC 351 at 362. . The findings of fact demonstrated that " the management of the businesses of the companies was not exercised in the manner contemplated " [180] Bullock [ 1960 ] AC 351 at 362. .

121. All members of the House of Lords concluded that the " central management and control " of the companies was in the United Kingdom. In coming to that conclusion, Viscount Simonds observed that " residence is determined by the solid facts, not by the terms of [ a company ' s ] constitution, however imperative " and concluded that " it is the actual place of management, not that place in which it ought to be managed, which fixes the residence of a company " [181] Bullock [ 1960 ] AC 351 at 363; see also at 362. .

122. Similarly, Lord Radcliffe determined that the directors of the parent company were running the subsidiary companies from London and that that was inconsistent with the formal articles of association [182] Bullock [ 1960 ] AC 351 at 364; see also at 369. . But Lord Radcliffe did not believe that the test required that " you try to ascertain what are the real facts about the seat of management and control and to put in its


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place what seems to be the merely formal device of studying a set of written regulations " [183] Bullock [ 1960 ] AC 351 at 370. . Although the articles of the companies " prescribe [ d ] what ought to [ have been ] done ... they cannot create an actual state of control and management ... which does not exist in fact " [184] Bullock [ 1960 ] AC 351 at 370. .

123. In short, there is no support for the contention that a company ' s residency is determined merely by the location of its formal organs. The contention is contrary to the text of s 6(1) of the 1936 Act, the authorities and commercial reality.

Application to HWB

124. So, what is the position with HWB?

125. HWB accepted it was a " captive entity " run by Asiaciti Samoa in accordance with the instructions of Mr Gould. The directors of HWB never exercised the slightest judgment. The directors had no idea of HWB ' s business. The directors merely did as Mr Gould instructed. There was no evidence of any transaction ever being refused by the employees of Asiaciti Samoa, who were also directors of HWB at various times, on the basis that allowing the transaction would have been a breach of their fiduciary duties to HWB.

126. HWB contended that the reason that its directors never exercised the slightest judgment was because of the company ' s " childishly simple business model " . The business model was said to be the entering into of " back-to-back transactions " that gave rise to few occasions when the directors were required to exercise independent judgment. The customers of HWB were all clients of Mr Gould or entities associated with him.

127. While the business model may have comprised back-to-back transactions, the transactions were structured in that way because of the directions given by Mr Gould. Four people who had been directors of HWB at various times (who were also employees of Asiaciti Samoa) gave evidence that " they transacted the decisions of [ HWB ] in Apia doing so on every occasion at the direction of Mr Gould " (emphasis added). And although the primary judge accepted evidence of three of those employees who stated they would have rejected a transaction that was in breach of their fiduciary duties or otherwise unlawful, his Honour did not accept that they knew enough about the business for those statements to be " other than empty " [185] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,494 [ 358 ] . . The fact that the business ran in a particular way was a consequence of Mr Gould ' s control over the directors of HWB. HWB ' s contention should be rejected.

128. Moreover, the back-to-back transactions comprised only part of the overall business of HWB and contributed, at best, little to HWB ' s assessable income. In the 2004, 2006 and 2007 income years, it purchased and sold a large number of shares on the ASX from which it made substantial profits.

129. Finally, it is necessary to address the decision of the Court of Appeal of England and Wales in Wood v Holden . In that decision, Chadwick LJ drew a distinction between cases [186] Wood [ 2006 ] 1 WLR 1393 at 1410 – 1411 [ 27 ] . :

" where management and control of the company is exercised through its own constitutional organs (the board of directors or the general meeting) and cases where the functions of those constitutional organs are ' usurped ' - in the sense that management and control is exercised independently of, or without regard to, those constitutional organs. "

130. Chadwick LJ went on to explain that [187] Wood [ 2006 ] 1 WLR 1393 at 1411 [ 27 ] . :

" in cases which fall within the former class, it is essential to recognise the distinction (in concept, at least) between the role of an ' outsider ' in proposing, advising and influencing the decisions which the constitutional organs take in fulfilling their functions and the role of an outsider who dictates the decisions which are to be taken . In that context an ' outsider ' is a person who is not, himself, a participant in the formal process (a board meeting or a general meeting) through which the relevant constitutional organ fulfils its function. " (emphasis added)

131. Contrary to HWB ' s contentions, that distinction does not assist it. Mr Gould, an outsider from HWB ' s formal organs, dictated the decisions taken. HWB ' s real business was carried on in Australia by Mr Gould. Whether the board acted without


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exercising judgment or Mr Gould ignored the board, the answer is the same. Mr Gould did not merely influence the decisions of the board.

132. HWB had its central management and control in Australia. HWB was a resident for Australian tax purposes and liable to tax under s 6-5(2) of the 1997 Act.

133. The appeal should be dismissed with costs. The Commissioner ' s summons filed in HWB ' s appeal seeking revocation of special leave should also be dismissed.

Bywater, Chemical Trustee and Derrin

134. The issues in the appeal by Bywater, Chemical Trustee and Derrin are more complicated. There was no dispute that the income earned by those companies had an Australian source. Accordingly, even if it was assumed that each was a foreign resident, unless relief was available to each of them under a double tax agreement, each of them was liable to tax on that income under s 6-5(3) of the 1997 Act. Section 6-5(3) of the 1997 Act relevantly provided:

" If you are a foreign resident, your assessable income includes:

  • (a) the * ordinary income you * derived directly or indirectly from all * Australian sources during the income year " .

135. It is therefore necessary to consider the terms of the relevant double tax agreements. Two are relevant:

(1) the Convention between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains, as affected by the 2003 United Kingdom notes ( " the 2003 UK Convention " ) [188] [ 2003 ] ATS 22 . ; and

(2) the Agreement between the Government of Australia and the Swiss Federal Council for the Avoidance of Double Taxation with respect to Taxes on Income, and the Protocol to that agreement ( " the Swiss Agreement " ) [189] [ 1981 ] ATS 5 . .

136. An earlier agreement between Australia and the United Kingdom [190] The Agreement between the Government of the Commonwealth of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains that was signed at Canberra on 7 December 1967: [ 1968 ] ATS 9 . was at first also said to be relevant, but ultimately that submission was not pressed.

137. This section of the reasons will consider the International Tax Agreements Act 1953 (Cth) ( " the International Tax Agreements Act " ), then the specific provisions of the 2003 UK Convention (for Chemical Trustee and Derrin) and finally the Swiss Agreement (for Bywater, Chemical Trustee and Derrin) to determine whether one or more of them provides relief from s 6-5 of the 1997 Act.

138. As these reasons will explain, under the 2003 UK Convention and the Swiss Agreement, there are two possible avenues of relief: first, if the company is a resident only of the United Kingdom for the purposes of United Kingdom tax law (or Switzerland under the Swiss Agreement) and, second, if the company is a resident of both the United Kingdom for the purposes of United Kingdom tax law (or Switzerland) and Australia but its " place of effective management " is situated in the United Kingdom (or Switzerland).

139. Here, the first avenue turns on whether the company was also a resident of Australia for the purposes of Australian tax law and, in particular, the meaning of " central management and control " under the 1936 Act. If the company is also a resident of Australia, then it is necessary to consider the second avenue of relief. Whether that avenue is available turns on the proper construction of the phrase " place of effective management " under the relevant agreement and, in particular, whether the " place of effective management " is in the other country - respectively, the United Kingdom or Switzerland. As the Commissioner rightly submitted, " central management and control " and " place of effective management " are different concepts in different instruments. The consideration of the second avenue is important because, if the place of effective management is in the other country, the company is entitled to relief from tax in Australia.

The International Tax Agreements Act

140. The International Tax Agreements Act is " [ a ] n Act to give the force of Law to certain Conventions and Agreements with respect to Taxes on Income and Fringe Benefits, and for purposes incidental thereto " .

141.


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Section 4 provided that the 1936 Act and the 1997 Act were incorporated into the International Tax Agreements Act and were to be " read as one " with the International Tax Agreements Act, but that the provisions of the International Tax Agreements Act " have effect notwithstanding anything inconsistent with those provisions contained " in the 1997 Act or the 1936 Act or in an Act imposing Australian tax.

142. During the relevant period, each agreement was set out in full in Schedules to the International Tax Agreements Act and given the force of law.

143. The 2003 UK Convention was set out in Sched 1 to the International Tax Agreements Act. Section 5 provided that, subject to the International Tax Agreements Act, " on and after the date of entry into force of the [ 2003 UK Convention ] , the provisions of the convention, so far as those provisions affect Australian tax, have the force of law according to their tenor " .

144. The Swiss Agreement was set out in Sched 15 to the International Tax Agreements Act. Section 11E(1)(b) relevantly provided that, subject to the International Tax Agreements Act, on and after the date of entry into force of the Swiss Agreement, the provisions of the Swiss Agreement, in so far as those provisions affect Australian tax, " have, and shall be deemed to have had, the force of law ... in respect of income of the year of income that commenced on 1 July 1979 and of a subsequent year of income in relation to which the agreement remains effective " .

145. How, then, is each agreement to be interpreted?

146. " The first step is to ascertain, with precision, what the Australian law is, that is to say what and how much of an international instrument Australian law requires to be implemented, a process which will involve the ascertainment of the extent to which Australian law by constitutionally valid enactment adopts, qualifies or modifies the instrument " [191] NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 at 71 [ 61 ] ; [ 2006 ] HCA 54 . . That step is critical, because, as a matter of statutory interpretation, there is a distinction between circumstances where international instruments, such as the two in issue in this matter, have been enacted into Australian law [192] See, eg, Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161 at 166 [ 3 ] , 186 [ 70 ] , 210 [ 132 ] , 224 [ 163 ] ; [ 1998 ] HCA 65 ; Povey v Qantas Airways Ltd (2005) 223 CLR 189 at 197 [ 3 ] , 224 [ 107 ] ; [ 2005 ] HCA 33 . and circumstances where provisions of an Act draw on a treaty which has not been enacted into Australian law [193] See, eg, Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 14 – 16 [ 34 ] ; [ 2006 ] HCA 53 . .

147. Where, as here, an instrument is set out in full in legislation and given the force of law by it (save for where the legislation indicates otherwise), it is clearly the intention of the legislature that the " transposed text should bear the same meaning in the domestic statute as it bears in the treaty " [194] Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230 – 231; [ 1997 ] HCA 4 ; Great China Metal Industries (1998) 196 CLR 161 at 186 [ 70 ] , both citing Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 265; [ 1982 ] HCA 27 . .

148. If the terms of an instrument enacted into Australian law were interpreted strictly in accordance with domestic principles of statutory interpretation, there would be a risk that the treaty would be interpreted differently even though other countries had adopted the same instrument [195] See Povey (2005) 223 CLR 189 at 202 [ 25 ] , 230 [ 128 ] and the authorities cited. . That risk is significant with double tax agreements. The whole point of those agreements - to prevent double taxation across two jurisdictions - would be frustrated if " they were to be interpreted in a manner which would permit or foster conflicting outcomes between the two States in question " [196] Federal Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149 at 186 [ 120 ] . .

149. The principles applicable to construction of international instruments must be applied; those principles are found in the Vienna Convention on the Law of Treaties ( " the VCLT " ) [197] Arts 31 and 32 of the VCLT; [ 1974 ] ATS 2 . See Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 349 – 350, 356; [ 1990 ] HCA 37 . . The VCLT largely reflects principles of customary international law [198] Thiel (1990) 171 CLR 338 at 349, 356. . The VCLT does not apply retrospectively and therefore does not apply in the interpretation of the Swiss Agreement, which was concluded prior to the entry into force of the VCLT for Switzerland [199] Art 4 of the VCLT. .

150. It is necessary to consider each double tax agreement against that background.

The 2003 UK Convention

151. The 2003 UK Convention relevantly applied from 1 July 2004 [200] See Art 29(1) of the 2003 UK Convention. . The assessments potentially subject to these provisions are those issued to Chemical Trustee and Derrin for the income years after that date.

152. The 2003 UK Convention applies to " persons who are residents of one or both of the Contracting States " (being Australia and the United Kingdom) [201] Arts 1 and 3(1)(e) of the 2003 UK Convention. and, relevantly, the income taxes of those States [202] Art 2(1)(a)(i) and (b) of the 2003 UK Convention. . Article 7(1) relevantly provides that " [ t ] he profits of an enterprise of a Contracting State shall be taxable only in that State " . The phrase


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" enterprise of a Contracting State " is defined to mean " an enterprise carried on by a resident of a Contracting State " [203] Art 3(1)(i) of the 2003 UK Convention. .

153. Under Art 4(1)(a), a person is a resident of the United Kingdom " if the person is a resident of the United Kingdom for the purposes of United Kingdom tax " . " United Kingdom tax " means tax imposed by the United Kingdom [204] Art 3(1)(d) of the 2003 UK Convention. . Under Art 4(1)(b), a person is a resident of Australia " if the person is a resident of Australia for the purposes of Australian tax " . " Australian tax " means tax imposed by Australia [205] Art 3(1)(c) of the 2003 UK Convention. .

154. Article 4(4) recognises the possibility that a company may be a resident of both Australia and the United Kingdom. In that circumstance, Art 4(4) provides that the company " shall be deemed to be a resident only of the State in which its place of effective management is situated " (emphasis added).

155. There are two avenues open to Chemical Trustee and Derrin to rely on the 2003 UK Convention: first, if they are a resident only of the United Kingdom for the purposes of United Kingdom tax law; second, if they are a resident of both the United Kingdom and Australia under the respective domestic laws, but their " place of effective management " is situated in the United Kingdom.

156. The primary judge proceeded upon the assumption that Chemical Trustee and Derrin were residents of the United Kingdom [206] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,504 [ 424 ] . . On that assumption, the first relevant question is: are Chemical Trustee and Derrin also residents of Australia for the purposes of Australian taxation law? That question directs attention to the " central management and control " question considered earlier with respect to HWB. If the answer is " yes " , then the further question is: where is the " place of effective management " of Chemical Trustee and Derrin situated? If the answer to that question is " the United Kingdom " , then Art 7(1) operates to relieve Chemical Trustee and Derrin from Australian income tax. Of course, Chemical Trustee and Derrin must be considered individually.

157. Neither avenue is available to either Chemical Trustee or Derrin. The first avenue is closed because the " central management and control " of each is in Australia, making each an Australian resident. The second avenue is closed because, assuming Chemical Trustee and Derrin are also residents of the United Kingdom, the " place of effective management " of each of Chemical Trustee and Derrin is in Australia and not the United Kingdom.

(i) " Central management and control "

158. Consistent with the principles concerning " central management and control " earlier identified, the location of the formal organs of each of Chemical Trustee and Derrin is not determinative. Accordingly, on the facts found by the primary judge regarding Mr Gould ' s role, it is clear that, for each of Chemical Trustee and Derrin, its " central management and control " was in Australia.

159. Chemical Trustee and Derrin submitted that " the lawfully appointed organs of the companies were not by-passed " and that the " effective decisions of the companies were made by the board or its directors albeit in many cases influenced by Mr Gould " . That contention should be rejected. It is contrary to the finding of fact, not challenged on appeal, that Mr Gould was the person who controlled Chemical Trustee and Derrin.

160. Therefore, each of Chemical Trustee and Derrin is a " resident " of Australia for the purposes of Australian taxation law because its " central management and control " was in Australia.

(ii) " Place of effective management "

161. It is then necessary to consider the second avenue. The availability of that avenue turns on the meaning of the phrase " place of effective management " in Art 4(4) of the 2003 UK Convention.

162. Chemical Trustee and Derrin failed to substantively address this issue. As the Commissioner submitted, Chemical Trustee and Derrin did not approach the issue correctly.

163. Chemical Trustee and Derrin focussed too closely on the concept of " central management and control " without reference to the specific provisions of the 2003 UK Convention. At the hearing, counsel for Chemical Trustee and Derrin submitted that you look to the same matters to determine the " place of effective management " as you do to


ATC 19050

determine the place of " central management and control " . As the Commissioner acknowledged, in some cases, such as the present, the result may be the same. But as the Commissioner rightly submitted, they are different concepts. The meaning of each turns on the interpretation of the phrase as it appears in the relevant instrument - the 1936 Act for " central management and control " and the 2003 UK Convention for " place of effective management " . Each must be examined to determine the applicability of each in any given case. It cannot be assumed that if one test is satisfied, then it will automatically follow that the other is satisfied.

164. Once that interpretive task is undertaken in relation to " place of effective management " in the 2003 UK Convention, it is clear that the location of the formal organs of a company cannot be determinative of the " place of effective management " of that company.

165. Article 31(1) of the VCLT provides that a " treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose " . The ordinary meaning of the terms of the 2003 UK Convention points away from a construction that would benefit Chemical Trustee and Derrin. Significantly, Art 4(4) refers to the " place of effective management " . The express terms of that phrase impose a requirement that in order to identify the place of effective management, the inquiry must go beyond the mere formalities of where the formal organs of a company might be located.

166. That conclusion is consistent with the object and purpose of the 2003 UK Convention. As noted earlier, the purpose of double tax agreements is to avoid tax being imposed on a person twice for the same activity. Under the 2003 UK Convention, the key determinant is residency. Article 4(4) operates against that background - it is enlivened when residency is not sufficient to provide an answer to the question: in which country should the person be taxed? Article 4(4) breaks any deadlock and, depending on the domestic laws of the relevant Contracting States, its ability to break a deadlock would be seriously undermined were it construed so as to be limited to an inquiry about the location of the formal organs of a company.

167. That construction is confirmed by Art 32 of the VCLT, which provides that " [ r ] ecourse may be had to supplementary means of interpretation ... in order to confirm the meaning resulting from the application of article 31 " . The 2003 UK Convention is based upon the Organisation for Economic Co-operation and Development ' s ( " the OECD " ) Model Tax Convention on Income and on Capital. In Thiel v Federal Commissioner of Taxation , all members of the Court referred to the Commentaries on the Articles of the Model Convention in accordance with Art 32 [207] (1990) 171 CLR 338 at 344, 349 – 351, 356 – 358. See also Revenue and Customs Commissioners v Smallwood [ 2010 ] BTC 637 at 654 [ 48 ] . .

168. What does the Commentary on Art 4 provide? During the relevant period, the Commentary relevantly stated that [208] OECD, Model Tax Convention on Income and on Capital , 9th ed (2015) at C(4)-8 [ 22 ] and C(4)-20 [ 24 ] . :

" It would not be an adequate solution to attach importance to a purely formal criterion like registration. Therefore [ Art 4(4) ] attaches importance to the place where the company, etc is actually managed.

...

The place of effective management is the place where key management and commercial decisions that are necessary for the conduct of the entity ' s business are in substance made . The place of effective management will ordinarily be the place where the most senior person or group of persons (for example a board of directors) makes its decisions, the place where the actions to be taken by the entity as a whole are determined; however, no definitive rule can be given and all relevant facts and circumstances must be examined to determine the place of effective management . " (emphasis added)

169. As those passages of the Commentary explain, while the place of effective management may " ordinarily " be the place where the board of directors makes its decisions, " all relevant facts and circumstances must be examined to determine [ where ] the place of effective management " of a company is located [209] cf Revenue and Customs Commissioners v Smallwood [ 2010 ] BTC 637 at 654 [ 48 ] – [ 49 ] . .

170. So, where was the " place of effective management " for Chemical Trustee and Derrin - Australia or the United Kingdom? The


ATC 19051

answer is Australia. Indeed, at the hearing, counsel for Chemical Trustee and Derrin contended that neither company was managed or controlled in the United Kingdom but each was managed and controlled in Switzerland.

171. The companies were incorporated in the United Kingdom, as were their ultimate shareholders (Lordhall and Guardheath). However, for both Chemical Trustee and Derrin, the board of directors exercised the lawful authority of the company in Switzerland. Critically though, Mr Gould was the person who controlled, and ultimately owned, Chemical Trustee and Derrin. The key management and commercial decisions were made by Mr Gould in Australia. It was the " place of effective management " .

172. For those reasons, Art 4(4) of the 2003 UK Convention deems each of Chemical Trustee and Derrin to be a resident of only Australia and, in accordance with Art 7(1), each is thereby taxable only in Australia. Thus, the 2003 UK Convention does not provide Chemical Trustee or Derrin any relief from s 6-5 of the 1997 Act.

The Swiss Agreement

173. The assessments potentially subject to the Swiss Agreement are all those issued to Bywater, Chemical Trustee and Derrin.

174. The Swiss Agreement applies to persons " who are residents of one or both of the Contracting States " [210] Art 1 of the Swiss Agreement. (being Australia and Switzerland) [211] Art 3(1)(c) of the Swiss Agreement. and to " Australian income tax " and Swiss " [ f ] ederal, cantonal and communal taxes on income " [212] Art 2(1)(a) and (b) of the Swiss Agreement. .

175. Article 7(1) relevantly provides that " [ t ] he profits of an enterprise of one of the Contracting States shall be taxable only in that State " . The phrase " enterprise of one of the Contracting States " means " an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Switzerland " [213] Art 3(1)(f) of the Swiss Agreement. .

176. A person is a " resident of Switzerland if the person is subject to unlimited tax liability in Switzerland " [214] Art 4(1)(b) of the Swiss Agreement. . Under Art 4(1)(a), a person is relevantly a resident of Australia " if the person is a resident of Australia for the purposes of Australian tax " . " Australian tax " means tax imposed by Australia [215] Art 2(3) of the Swiss Agreement. .

177. Article 4(3) recognises the possibility that a company may be a resident of both Australia and Switzerland. When a company is a resident of both States, the company " shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated " (emphasis added).

178. As with the 2003 UK Convention, there were two avenues available to obtain relief from s 6-5 of the 1997 Act. Again, neither avenue is available.

179. First, the " central management and control " of each company is in Australia, meaning they are residents of Australia and not solely residents of Switzerland (assuming that they were also residents of Switzerland).

180. Second, the " place of effective management " of each company is in Australia and not Switzerland.

181. The Swiss Agreement, like the 2003 UK Convention, derives from the Model Convention. However, unlike the 2003 UK Convention, its interpretation is not governed by the VCLT. That is because Art 4 of the VCLT relevantly provides that it " applies only to treaties which are concluded by States after the entry into force of the [ VCLT ] with regard to such States " . The VCLT did not enter into force with regard to Switzerland until after the conclusion of the Swiss Agreement [216] The Swiss Agreement was signed on 28 February 1980 and entered into force on 13 February 1981. Switzerland did not accede to the VCLT until 7 May 1990. . Nevertheless, this Court has recognised [217] Thiel (1990) 171 CLR 338 at 349, 356. that, consistently with international law [218] Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment [ 2002 ] ICJ Rep 625 at 645 [ 37 ] . See generally Gardiner, Treaty Interpretation , 2nd ed (2015) at 13 – 19. , Arts 31 and 32 of the VCLT reflect customary international law and it is appropriate to undertake the interpretive task by reference to those provisions.

182. For the reasons given above, an inquiry about the " place of effective management " is not limited to or answered by identification of the location of the formal organs of each entity.

183. Moreover, the primary judge found that, as a matter of Swiss law, a company will be subject to unlimited tax liability in Switzerland if it has its place of effective management in Switzerland [219] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,505 [ 438 ] . . And it was agreed that a company ' s place of effective management is where the day-to-day business decisions are made. It was also agreed that, in that context, strategic decisions are


ATC 19052

relevant, although not as relevant as day-to-day decisions, and administrative activities are irrelevant [220] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,505 [ 439 ] . .

184. None of the companies had its " place of effective management " in Switzerland. The primary judge found that Mr Borgas ' role was a " fa ç ade " and " fake " [221] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,451 [ 67 ] , 16,488 [ 312 ] – [ 314 ] , 16,492 [ 339 ] , [ 343 ] , 16,502 [ 405 ] , [ 410 ] – [ 411 ] . . The primary judge found that Mr Borgas exercised no independent judgment. His position was " to do as he was told by Mr Gould without thought " [222] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,502 [ 406 ] . . All that occurred in Switzerland was the formal implementation of decisions that, in substance, were made by Mr Gould. On that basis, it is a nonsense to say that Mr Borgas was " effectively managing " each entity from Switzerland. The " place of effective management " was with Mr Gould in Australia.

185. For those reasons, Art 4(3) of the Swiss Agreement deems each of Bywater, Chemical Trustee and Derrin to be a resident only of Australia and, in accordance with Art 7(1), each is thereby taxable only in Australia. Thus, the Swiss Agreement does not provide Bywater, Chemical Trustee or Derrin any relief from s 6-5 of the 1997 Act.

Orders

186. Each appeal should be dismissed with costs. The Commissioner ' s summons filed in HWB ' s appeal should also be dismissed.


Footnotes

[157] Hua Wang Bank Berhad v Federal Commissioner of Taxation 2014 ATC ¶ 20-480 at 16,449 [ 59 ] .
[158] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,495 [ 364 ] .
[159] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,458 [ 110 ] .
[160] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,465 [ 145 ] , 16,488 [ 311 ] .
[161] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,488 [ 314 ] .
[162] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,492 [ 339 ] , [ 343 ] .
[163] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,450 [ 60 ] .
[164] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,504 [ 430 ] ; see also at 16,505 [ 440 ] .
[165] Bywater Investments Ltd v Federal Commissioner of Taxation (2015) 236 FCR 520 at 527 – 528 [ 17 ] .
[166] [ 1906 ] AC 455 at 458.
[167] De Beers [ 1906 ] AC 455 at 458; North Australian Pastoral Co Ltd v Federal Commissioner of Taxation (1946) 71 CLR 623 at 630; [ 1946 ] HCA 17 ; Esquire Nominees Ltd v Federal Commissioner of Taxation (1972) 129 CLR 177 at 190; [ 1973 ] HCA 67 .
[168] Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 248 – 249; [ 1941 ] HCA 13 citing Egyptian Delta Land and Investment Co Ltd v Todd [ 1929 ] AC 1 at 25. See also Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1940) 64 CLR 15 at 19; [ 1940 ] HCA 33 ; Unit Construction Co Ltd v Bullock [ 1960 ] AC 351 at 365, 372.
[169] See Koitaki Para Rubber (1941) 64 CLR 241 at 248; North Australian Pastoral Co (1946) 71 CLR 623 at 634; Esquire Nominees (1972) 129 CLR 177 at 190.
[170] (1972) 129 CLR 177 at 190.
[171] Esquire Nominees (1972) 129 CLR 177 at 190.
[172] Esquire Nominees (1972) 129 CLR 177 at 190.
[173] Esquire Nominees (1972) 129 CLR 177 at 191.
[174] Esquire Nominees (1972) 129 CLR 177 at 191.
[175] Esquire Nominees (1972) 129 CLR 177 at 191.
[176] See Esquire Nominees (1973) 129 CLR 177 at 209, 212, 220, 225.
[177] [ 1960 ] AC 351 at 359.
[178] Bullock [ 1960 ] AC 351 at 362.
[179] Bullock [ 1960 ] AC 351 at 362.
[180] Bullock [ 1960 ] AC 351 at 362.
[181] Bullock [ 1960 ] AC 351 at 363; see also at 362.
[182] Bullock [ 1960 ] AC 351 at 364; see also at 369.
[183] Bullock [ 1960 ] AC 351 at 370.
[184] Bullock [ 1960 ] AC 351 at 370.
[185] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,494 [ 358 ] .
[186] Wood [ 2006 ] 1 WLR 1393 at 1410 – 1411 [ 27 ] .
[187] Wood [ 2006 ] 1 WLR 1393 at 1411 [ 27 ] .
[188] [ 2003 ] ATS 22 .
[189] [ 1981 ] ATS 5 .
[190] The Agreement between the Government of the Commonwealth of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains that was signed at Canberra on 7 December 1967: [ 1968 ] ATS 9 .
[191] NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 at 71 [ 61 ] ; [ 2006 ] HCA 54 .
[192] See, eg, Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161 at 166 [ 3 ] , 186 [ 70 ] , 210 [ 132 ] , 224 [ 163 ] ; [ 1998 ] HCA 65 ; Povey v Qantas Airways Ltd (2005) 223 CLR 189 at 197 [ 3 ] , 224 [ 107 ] ; [ 2005 ] HCA 33 .
[193] See, eg, Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 14 – 16 [ 34 ] ; [ 2006 ] HCA 53 .
[194] Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230 – 231; [ 1997 ] HCA 4 ; Great China Metal Industries (1998) 196 CLR 161 at 186 [ 70 ] , both citing Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 265; [ 1982 ] HCA 27 .
[195] See Povey (2005) 223 CLR 189 at 202 [ 25 ] , 230 [ 128 ] and the authorities cited.
[196] Federal Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149 at 186 [ 120 ] .
[197] Arts 31 and 32 of the VCLT; [ 1974 ] ATS 2 . See Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 349 – 350, 356; [ 1990 ] HCA 37 .
[198] Thiel (1990) 171 CLR 338 at 349, 356.
[199] Art 4 of the VCLT.
[200] See Art 29(1) of the 2003 UK Convention.
[201] Arts 1 and 3(1)(e) of the 2003 UK Convention.
[202] Art 2(1)(a)(i) and (b) of the 2003 UK Convention.
[203] Art 3(1)(i) of the 2003 UK Convention.
[204] Art 3(1)(d) of the 2003 UK Convention.
[205] Art 3(1)(c) of the 2003 UK Convention.
[206] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,504 [ 424 ] .
[207] (1990) 171 CLR 338 at 344, 349 – 351, 356 – 358. See also Revenue and Customs Commissioners v Smallwood [ 2010 ] BTC 637 at 654 [ 48 ] .
[208] OECD, Model Tax Convention on Income and on Capital , 9th ed (2015) at C(4)-8 [ 22 ] and C(4)-20 [ 24 ] .
[209] cf Revenue and Customs Commissioners v Smallwood [ 2010 ] BTC 637 at 654 [ 48 ] – [ 49 ] .
[210] Art 1 of the Swiss Agreement.
[211] Art 3(1)(c) of the Swiss Agreement.
[212] Art 2(1)(a) and (b) of the Swiss Agreement.
[213] Art 3(1)(f) of the Swiss Agreement.
[214] Art 4(1)(b) of the Swiss Agreement.
[215] Art 2(3) of the Swiss Agreement.
[216] The Swiss Agreement was signed on 28 February 1980 and entered into force on 13 February 1981. Switzerland did not accede to the VCLT until 7 May 1990.
[217] Thiel (1990) 171 CLR 338 at 349, 356.
[218] Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment [ 2002 ] ICJ Rep 625 at 645 [ 37 ] . See generally Gardiner, Treaty Interpretation , 2nd ed (2015) at 13 – 19.
[219] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,505 [ 438 ] .
[220] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,505 [ 439 ] .
[221] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,451 [ 67 ] , 16,488 [ 312 ] – [ 314 ] , 16,492 [ 339 ] , [ 343 ] , 16,502 [ 405 ] , [ 410 ] – [ 411 ] .
[222] Hua Wang Bank 2014 ATC ¶ 20-480 at 16,502 [ 406 ] .

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