The New OECD MEMAP: A Gamechanger for Cross-Border Dispute Resolution?
05 Mar 2026
What happened?
On 2 February 2026, the OECD published the 2026 Edition of the Manual on Effective Mutual Agreement Procedures (“MEMAP”). This was the first comprehensive revision of the manual since its original version was issued in 2007. Approved by the Inclusive Framework on BEPS on 18 December 2025, the new MEMAP is not merely an update — it is a complete rewrite, reflecting the operational realities of Mutual Agreement Procedures (“MAP”) as they have evolved through the BEPS era, the Action 14 peer reviews, and thousands of cases handled since.
The manual is non-binding, but that label should not mislead: MEMAP was drafted by competent authorities, for competent authorities — and endorsed by over 140 jurisdictions. It contains 59 aspirational best practices (50 for jurisdictions, 9 for taxpayers), practical templates for MAP requests, position papers and closing letters, and, for the first time, detailed guidance on MAP arbitration.
Why this matters now
Multinational enterprises operate in a tax environment of unprecedented complexity. Transfer pricing scrutiny is intensifying. Anti-abuse provisions — from the Principal Purpose Test (PPT) to domestic General Anti-Abuse Rules (GAARs) — are being applied more aggressively, while the volume of MAP cases continues to grow. Against this background, a well-functioning MAP process is necessary for any CFO or taxpayer managing cross-border tax risk.
What is genuinely new?
1. Access to MAP: a much stronger stance — including in anti-abuse cases
Perhaps the most significant development for the 2026 MEMAP lies in its uncompromising language on access to MAP. The manual makes clear that access should be granted in all eligible cases, and that only three narrow grounds justify denial: wrong competent authority, missed deadline, or ineligible taxpayer/treaty.
Critically, the MEMAP addresses several points:
- Anti-abuse provisions are not a reason to deny access. When a taxpayer and a tax authority disagree on whether a treaty anti-abuse rule (e.g. the PPT) or a domestic anti-abuse provision applies, the taxpayer should still be admitted to MAP. The receiving competent authority must then consult bilaterally — in good faith — before concluding that the objection is unjustified. Similarly, access should not be denied solely due to the presence of criminal sanctions, even where these are unrelated to the case at hand. This is a position our firm had already advocated in detail in a 2022 IBFD publication, where we set out the rationale for MAP eligibility following the application of the Principal Purpose Test. We are pleased to see this now expressly confirmed in §95 of MEMAP 2026.
Caveat: It is important to clarify that the MEMAP relates specifically to the MAP under bilateral double tax treaties (DTTs) and do not apply to either the Arbitration Convention (90/436/EEC) or the Directive (2017/1852). These are separate legal instruments with their own distinct procedural frameworks and exclusion grounds. Indeed, under both instruments, an affected person whose conduct has resulted in fraud or the imposition of a serious penalty may be denied access to the dispute resolution mechanisms. However, the Directive provides more unified criteria across Member States (fraud, wilful default, gross negligence), while the Arbitration Convention allows each Member State significant discretion through individual definitions of “serious penalties”. - Audit settlements must not come with MAP waivers — and threats are unacceptable. Taxpayers should not be required — explicitly or implicitly — to give up their right to MAP in exchange for an audit settlement. The manual is remarkably specific in its list of prohibited forms of pressure: threats of higher adjustments, threats of future audits, and — notably — the imposition or revocation of criminal penalties or prosecution being made contingent on whether MAP is accessed. Jurisdictions must ensure that audit practices and settlement procedures do not undermine taxpayers’ treaty rights nor create undue deterrents to accessing MAP.
- Paying the tax bill should not be a precondition. Jurisdictions are encouraged to suspend collection while MAP is pending, acknowledging the inconsistency between broad MAP access and upfront payment requirements.
- Domestic remedies and unilateral APAs should not bar MAP. Cases where taxpayers simultaneously pursue domestic proceedings or have entered unilateral APAs must not be excluded.
For taxpayers who have experienced challenges in accessing MAP due to procedural or practical hurdles, this language represents a meaningful step forward
2. Transparency: real, yet limited, progress
The MEMAP promotes a markedly more transparent MAP process. Jurisdictions are expected to publish clear MAP guidance, maintain MAP profiles on the OECD platform and report MAP statistics. Aspirational timelines are introduced: 4–8 weeks to confirm eligibility, 4 months to assess unilateral relief, and an overall target of 24 months to resolve a case. Standardised templates for MAP requests, position papers and closing letters aim to reduce procedural friction across jurisdictions.
Best Practice 19 provides that taxpayers should receive progress updates from the competent authority upon request. However, the MEMAP draws a clear line: taxpayers should not be informed of the substance of the bilateral discussions, nor be given access to the position papers exchanged between competent authorities. Competent authorities may choose to engage with taxpayers on their analysis before sharing positions with other jurisdiction or invite taxpayers to clarify facts — but this is discretionary, not mandatory.
Best Practice 3 goes even further, as it states that position papers and inter-authority communications should not be disclosed to the taxpayer “regardless of any domestic information disclosure legislation, such as freedom of information laws or other provisions allowing broader access to government-held documents.”
With this position, taxpayers’ rights (provided in domestic and international legal instruments) are in our opinion not fully respected. In this regard, the Belgian State Council (Raad van State/Conseil d'État) and the Commission for Access to Administrative Documents ruled several times that a general denial of access to the position papers infringes the Belgian Constitution, and the Law on Open Administration Access to MAP position papers thus remains a point of discussion. That said, the question of access carries real practical significance for taxpayers. Being able to review the competent authority’s position papers allows them to verify whether the details of their case have been accurately and neutrally represented in intergovernmental discussions. It also enables better understanding of the reasoning behind the MAP outcome — which, ultimately, directly affects their tax position.
In other words, while the OECD’s position in the MEMAP firmly supports keeping position papers confidential, questions remain regarding the alignment between the MEMAP and the fundamental right of taxpayers to have access to their file as provided in article 41 of the EU Charter of Fundamental Rights.
3. Arbitration: detailed guidance for the first time
It is no coincidence that the MEMAP provides detailed guidance on MAP arbitration for the first time: arbitration under Article 25(5) of the OECD Model Tax Convention did not yet exist when the original MEMAP was published, back in 2007. The provision was only introduced in the 2008 update of the Model Convention and subsequently gained broader traction through the BEPS Multilateral Instrument (MLI) signed in 2017, which allowed jurisdictions to opt into mandatory binding arbitration under its Part VI.
The revised MEMAP now fills the gap by offering practical guidance on this binding backstop — available when competent authorities fail to resolve a case within the prescribed period, typically two years. The manual covers the two available arbitration models (last-best offer and independent opinion), panel composition, confidentiality safeguards, cost-sharing and timelines, with the objective of reaching a decision within one year.
The most striking practical insight is that the new MEMAP acknowledges the “accelerator effect” of arbitration. Competent authorities themselves report that cases nearing the arbitration deadline receive expedited attention, and even previously deadlocked disputes are frequently resolved just before arbitration becomes mandatory. The mere existence of an arbitration clause improves MAP itself. Jurisdictions that have chosen not to include arbitration in any of their treaties are now expected to publicly explain their reasoning.
Practical tip: pursue domestic remedies in parallel
The revised MEMAP addresses the interplay between MAP and domestic remedies across several best practices. It states that taxpayers are entitled to concurrently pursue both avenues — MAP and domestic proceedings — and that access to one should not be conditional upon the other. Competent authorities should not require taxpayers to withdraw domestic proceedings, initiate specific procedural steps, or settle outstanding tax liabilities as a precondition for MAP access. Similarly, competent authorities should generally not be constrained by the outcome of domestic proceedings — whether administrative appeals, audit settlements, or unilateral APAs — unless a court has rendered a final decision from which no legal deviation is permissible.
That said, taxpayers should be mindful of the respective scope of each remedy. MAP is designed to resolve the international double taxation arising from a tax adjustment, but certain consequential elements may fall outside of its reach. The revised MEMAP takes the position that interest charges and administrative penalties that are directly and proportionally linked to the underlying tax liability should be reduced or withdrawn to the extent the tax itself is relieved through MAP. However, penalties relating to domestic compliance obligations — such as inadequate transfer pricing documentation, late filings, or late payment — as well as criminal penalties imposed by a court, may be maintained irrespective of the MAP outcome.
This distinction has practical implications for the litigation strategy that taxpayers should follow. Where a MAP agreement provides only partial relief, or where the taxpayer seeks to challenge elements that fall outside the scope of MAP — such as residual tax increases under domestic provisions, interest, or compliance-related penalties — it may be necessary to pursue domestic remedies in parallel to preserve the possibility of obtaining full relief from all consequences of the original adjustment.
Allowing domestic appeal deadlines to lapse while MAP is pending can result in an irreversible loss of rights.
The limits: aspirational, not enforceable — but increasingly influential
MEMAP’s best practices are explicitly described as “aspirational.” They do not create binding obligations, and they cannot override domestic legal constraints.
But the soft-law character of the MEMAP should not be underestimated. The BEPS Action 14 peer review process continues to hold competent authorities accountable on MAP performance, and MEMAP provides the benchmark against which that performance will increasingly be measured. This creates a pathway for the gradual strengthening of the minimum standard over time.
What should companies do?
- Know your rights. The MEMAP gives you a tangible reference point when engaging with competent authorities — on access, timelines, and the independence of the MAP function from audit.
- File early and in both jurisdictions. The manual encourages simultaneous submissions to both competent authorities.
- Challenge procedural barriers. Where access is denied on grounds inconsistent with the MEMAP — whether due to anti-abuse provisions, audit settlements, or domestic remedy requirements — push back, citing the relevant best practices.
- Maintain domestic remedies in parallel. Never let domestic appeal deadlines expire while MAP is pending — particularly to protect your ability to challenge penalties.
- Engage early with pre-MAP consultations. Many competent authorities now offer pre-filing meetings: take advantage of these.
The bottom line
The 2026 MEMAP is aspirational — but increasingly influential. Combined with the BEPS Action 14 peer review process, it creates a pathway for holding competent authorities accountable and gradually strengthening the global framework for dispute resolution. Businesses that understand and leverage these best practices will be better positioned to protect their treaty rights, manage cross-border tax risk, and resolve disputes more effectively.
For further information, please contact our tax lawyers Véronique De Brabanter, Gauthier Vael, Steve Pierrée or Tibo Gisquiere.
Contact us
Tibo Gisquiere
