Les stratégies juridiques des sociétés transnationales:. L'exemple des prix de transfert

Mounir Snoussi

Revue internationale de droit économique, 2003, vol. t. XVII, issue 3, 443-469

Abstract: LEGAL STRATEGIES OF TRANSNATIONAL CORPORATIONS : THE EXAMPLE OF TRANSFER PRICING Transnational Corporations (TNC) use legal strategies, which directly or indirectly, impact on the normative power of States. Transfer pricing, which basically is a simple economic technique, presents a topical example. It produces normative effects in a general sense in that States cannot avoid recognising and legitimising them. Due to the complexity of transfer pricing, its control by State authorities is bound to remain approximative. In addition, transfer pricing may also produce normative effects in a stricter sense in that eventual recoveries of taxes foregone frequently will be a matter of negotiation between States and the TNC concerned. The outcome of these negotiations is largely predetermined by the TNC themselves as they hold all the necessary information. In the context of globalisation, this negotiated « regulation » is not even irregular. Indeed, international law, in particular as shaped by OECD, is concerned with the attractiveness of national regulation for market participants, notably for TNC, as regulation should set incentives for attracting industrial and commercial activities. Of course, there will always be some exercise of control, but it remains embedded in the overall regulatory policy. In particular, the increasing number of agreements of transfer pricing shows the way for reconciling the policy objectives of setting incentives and exercising control. TNC effectively played their role of « norm-influencing » actors in this process. By circumventing national tax law they managed to help create new standards of transfer pricing control.

Date: 2003
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