The role of contract interpretation in transfer-pricing law: lessons from Canada

The purpose of this article is to point out recent and significant developments that further support the author’s call to acknowledge the necessary role of contract interpretation in the process of delineating the actual controlled transaction when conducting a transfer-pricing analysis. The first development refers to recent cases in which Canada’s courts (1) have recognized the necessary role of contract interpretation in determining the true nature of a transfer-pricing arrangement, and (2) have exemplified the correct approach to identifying and applying the law of interpretation that governed the contractual terms. These cases ought to serve as an example to other courts, in Canada and around the world, when delineating the true nature of controlled transactions for the purposes of the transfer-pricing analysis. The second development is the now explicit recognition by the Organisation for Economic Co-operation and Development, in its newly revised transfer-pricing guidelines, of the necessary role of contract interpretation in the transfer-pricing analysis. Considering these developments, it is hoped and expected that courts will not overlook this necessary task of contract interpretation. The risk of such oversight is exemplified in this article by the Supreme Court of Canada’s analysis in Canada v. GlaxoSmithKline Inc.