It is understood that in determining the residence of a person, the competent authorities shall have regard to:
- i)were the senior management of the person is carried on;
- ii)where the meetings of the board of directors or equivalent body are held;
- iii)where the chief executive officer and other senior executives usually carry on their activities;
- iv)where the person’s headquarters are located;
- v)which State’s laws govern the legal status of the person;
- vi)where the person’s accounting records are kept;
- vii)the extent and nature of the economic nexus of the person to each State; and
- viii)whether determining that the person is a resident of one of the Contracting States but not of the other State for the purposes of the Convention would carry the risk of an improper use of the Convention or inappropriate application of the domestic law of either State.
Although this list of factors is not exhaustive, in the absence of the factor viii) above the list of factors at i) to vii) above will generally be determinative.
The competent authorities shall apply the provisions of paragraph 3 of Article 4 on a case by case basis. As the facts upon which an agreement is reached may change over time the competent authorities may revisit agreements, particularly where there are significant changes in the relevant facts.
