内容提要：自由贸易协定与投资协定税收条款是协定中用以协调协定规则与税收措施关系的条款。晚近缔结的自由贸易协定与投资协定税收条款已由附属性转变为专门性税收条款，且大多基于税收措施一般例外和税收协定优先两项原则，即税收条款有明确授权且不与税收协定冲突的自由贸易协定与投资协定规则方可适用于税收措施。税收条款授权范围的大小，代表自由贸易协定与投资协定缔约国向协定框架下国际治理机制让渡税收主权的大小。缔约各方须综合考量全球化与逆全球化、资本（贸易）输出与资本（贸易）输入、外国投资者与东道国、国家主权与国际治理等多重因素，以确定本方的立场。本文在考察自由贸易协定与投资协定税收条款文本和协定框架下税收争议仲裁实践的基础上，结合对税收条款演进趋势的分析，提出我国因应策略的几点建议。中图分类号：F812.42 文献标识码：A 文章编号：2095-6126(2023)02-0064-07

Abstract:Tax clauses in free trade agreements (FTAs) and international investment agreements (IIAs) are the clauses used to coordinate the relationship between the rules of the agreements and the tax measures. In the late concluded agreements, tax clauses have been transformed from ancillary clauses to specialized clauses, and most of them are based on the two principles of general exception of tax measures and priority of tax agreements. That is to say, only the rules of FTAs and IIAs with clear authorization of tax clauses and no conlict with tax agreements can be applied to tax measures. The scope of authorization of tax clauses represents the extent to which the contracting state to FTAs and IIAs transfers tax sovereignty to international governance mechanisms under the framework of the agreements. Contracting states shall determine their positions by taking into account multiple factors such as globalization and anti-globalization, capital (trade) export and import, foreign investors and host country, national sovereignty and international governance. Based on the investigation of the text of tax clauses in FTAs and IIAs and the practice of tax dispute arbitration under the framework of the agreements, this paper analyzes the evolution trend of the tax clauses and puts forward some suggestions for China’s strategies.

关键词：自由贸易协定,投资协定,税收条款,争议解决,Keywords: Free trade agreement,Investment agreement,Tax clause,Dispute resolution