Variations in scope between similar provisions of existing
bilateral treaties can be successfully resolved. The prospective
treaty outputs of the BEPS Project will take into account current best
practices in tax treaty negotiation and therefore the provisions of a
multilateral instrument could, to a certain extent, overlap with certain
provisions found in some bilateral tax treaties. Potential conflicts
may arise from the interaction between new multilaterally agreed
provisions and similar provisions included in some existing bilateral
treaties that fully or partly cover the same subject matter. Such cases
raise questions as to whether existing bilateral provisions incorporated
in existing tax treaties should remain fully or partially applicable
alongside a multilaterally-agreed provision designed to address the
same basic questions, and if so under what circumstances and to what
extent. From a legal standpoint, the interaction between multilaterally
agreed provisions and similar provisions of existing bilateral treaties
could be resolved through the inclusion of specific “compatibility”
clauses (or “primacy” clauses) in the multilateral instrument.