The International Journal
of Not-for-Profit Law

Volume 3, Issue 1, September 2000

The Europhil Trust
Registered charity N° 294982

The Barbados Declaration on Tax Treatment of Non-Governmental and Non-Profit Organisations of 22 August 2000

Introduction

The Europhil Trust was established in 1986 as an independent non-governmental and non-profit organisation serving as the European affiliate of the International Standing Conference on Philanthropy (Interphil) in Geneva. Its aim is to promote the law and practice of NGOs through conferences, consultancy and publications.

Europhil focuses on two major problems:

1. the challenges posed to civil society after the collapse of communism in Central and Eastern Europe and
2. the fiscal régime of NGOs and their donors. In the first field mentioned above, Europhil prepared in 1999, in partnership with the Interlegal Foundation in Moscow, a detailed report and opinion on the reform of the law on foundations of the Russian Federation. This work was supported by consultation meetings in London and Moscow and a major international conference « NGOs for transparency and against corruption » in Amsterdam.In March 2000, as a follow-up to the Amsterdam conference, a Working Group set up by Europhil met at Častá Papiernička in the Slovak Republic at the invitation of Vice Prime Minister Dr. L’ubomir Fogaš to examine the moral and legal issues of good governance of NGOs.

The second major issue on which Europhil has carried out substantial work is the tax treatment of NGOs. In 1991 it initiated a study which led as from 1994 to the publication by the International Bureau of Fiscal Documentation (IBFD) in Amsterdam of a loose-leaf handbook « The Tax Treatment of Cross-border Donations » (editor Paul Bater).

Convinced that the tax treatment given to NGOs is a barometer of the high or low esteem in which States hold the voluntary sector and concerned by the lack of sufficient incentives in national laws to transborder philanthropy, Europhil organised from 1996 to 2000 a series of three round tables with the participation of fiscal experts, lawyers, NGO leaders, national and international civil servants and university teachers (Bratislava 1996, Amsterdam 1998 and Barbados 2000).

Organisation of the Barbados Round Table

The Committee of Honour, presided by Vice Prime Minister L’ubomir Fogaš of the Slovak Republic, was composed of the following eminent personalities: H.E. Ambassador Fotaq Andrea, rapporteur on NGOs to the Council of Europe, Mr. Len Davies, Secretary to the Committee of Ministers of the Council of Europe, Professor Hubert Haemakers, Chief Executive of the IBFD, Lord Phillips of Sudbury and H.E. Peter Simmons, High Commissioner for Barbados in the United Kingdom.

The Round Table was co-chaired by Trustees Dr. Trevor Carmichael QC of Barbados and Dr. Frits Hondius of Strasbourg and The Hague. The general rapporteur was Mr. Paul Bater of London, staff member of the IBFD. Ms. Celeste Mohammed acted as Secretary to the Round Table.

The Round Table was announced by brochures, distributed worldwide to experts of fiscal law and to NGOs . Announcements were placed in several journals and Internet sites. The event was entirely self-supporting and conducted without outside financial support or sponsorship. While this limited the number of registrations, it enhanced the completely independent character of the meeting and created a favorable climate for frank exchanges of information and ideas between the 20 participants from 11 countries and four continents. They formed a round table in the true sense of the word.

Although The Europhil Trust is a European organisation, the choice of a venue outside Europe was justified by the desire the Trust to ascertain whether the rules and principles for the tax treatment of the voluntary sector it has identified are valid for and shared by the NGO world outside Europe. Moreover, the Caribbean area of which Barbados forms part represents a mosaic of States and legal systems, including notably the common law and civil law, and thus a veritable laboratory for international NGO cooperation.

The Programme

The opening session on 20th August 2000 began with the inaugural address pronounced by the Chief Justice of Barbabos, His Lordship Sir Denys Williams. The next speaker was Ambassador Miroslav Jenča of the Slovak Republic who read a message from the Chairman of the Committee of Honour, Vice Prime Minister Dr. L’ubomir Fogaš. Co-chairmen Carmichael and Hondius thereafter outlined the purpose of the Round Table which should not be merely an occasion for taking stock of the existing situation lex lata, but above all for indicating in what direction national and international tax law on NGOs could be improved de lege ferenda.

The first working session concentrated on the crucial problem of defining public benefit, the interpretation of which is very different from one jurisdiction to another, thus hampering the realisation of international philanthropy. The learned speaker on this topic was Mr. Arthur Drache Q.C. of Ottawa.

Trustee Cyril Ritchie (Geneva) introduced the second working session on recognition of foreign and international NGOs. The Council of Europe’s Convention N° 124 is for the moment the only legal instrument in the world which offers a solution to this problem, both at the political and the practical level. It is open for accession by States not only in Europe but also in other parts of the world. NGOs can legitimately campaign for ratification of this instrument, taking care however not to jeopardize their charitable status.

The third working session on control, accounting and transparency was led by Anne-Marie Boutin of Paris. While during the 1996 and 1998 Round Tables most attention had been focused on the fiscal rights and privileges of NGOs and their benefactors, The Europhil Trust wished to use this occasion for stressing the corresponding duties and obligations of NGOs, so as to continue enjoying the trust of donors, the State and the general public. Mary King of Trinidad, representing Transparency International, highlighted the mutual obligations of government and NGOs with regard to accountability. Crispin Gregoire (USA) elaborated on the principles of good governance on the part of NGO boards. Several other participants contributed further elements to this session.

The first conference day ended with a Regional panorama : North America and the Caribbean, moderated by Bruce Zagaris of Washington DC, with contributions from Professor Lieber of Pittsburgh and Dr. Carmichael.

On 22nd August 2000, a Regional Panorama Africa and Asia was held with Laura Maxwell Stuart of South Africa in the chair. The Japanese delegation –Professor Shigeyuki Itow and Mr. Masakazu Mori of Kyushu Sangyo University- and Mr. Goutam Kumar Sanyal of Dhaka, Bangladesh offered written and oral contributions.

At the fourth and final working session on bilateral and multilateral legal instruments, Paul Bater, general rapporteur, delivered a remarkable exposé on various restrictions hampering ‘outbound’ and ‘inbound’ charity and gifts. He deplored the fact that only 46 of the 2000 bilateral tax treaties in the world refer specifically to NGOs. During the discussion, it was pointed out that in terms of a satisfactory overall legal regime, NGOs are lagging behind government and business.

At the closure of the Round Table, the participants adopted the Barbados Declaration on tax treatment of non-governmental and non-profit organisations, setting out the main principles and guidelines and expressing the wish that the combined materials of the three round tables and related meetings would be published and that further meetings will be organised by Europhil, for example at the regional level or on specific problems.

Social Events

During their stay in Barbados, the participants enjoyed the hospitality, on 20 August, of Dr. Trevor and Mrs. Sharen Carmichael for a Caribbean dinner at Staple Grove House . On 21 August, they were guests for dinner at the Barbados Museum and Historical Society, in the presence of the Minister of Industry and International Business, the Hon. Reginald Farley, and many other distinguished personalities.

During the evening, the Bikem B. Özsunay Memorial Award for the year 2000 was presented by Mrs. Pauline Farley to Clyde Gibson, a young Barbadian graphic artist. On 22 August, participants were offered a guided tour of the Barbados East coast.

Miscellaneous

In order to enable a representative of an NGO from a developing country to attend the Round Table and let the voice of the third world be heard, the Chief Trustee launched a ‘summer appeal’, which succeeded in raising by private donations the required travel grant.

Proceedings

In accordance with the wish expressed in the operative paragraphs of the Barbados Declaration, The Europhil Trust will undertake to process the rich materials resulting from the three round tables and related events into a manuscript for publication. Professor Penina Lieber of the Univeristy of Pittsburgh will be the Coordinating editor.

Please click here to read the Barbados Declaration in its entirety.

____________________________
For the Full Round Table Report, prepared by Celeste Mohammed, Secretary to the Round Table, Contact:

The Europhil Trust Secretariat : 8 rue Mozart, 67370 Griesheim sur Souffel, France
phone ++ 33 388 561646 fax + 33 388 561210 e mail hondius@wanadoo.fr

Seminar in the Hague

On October 2 and 3, the World Bank, CIVICUS and the Institute of Social Studies convened an invitational seminar to discuss the “Legal Dimensions of the Enabling Environment for NGOs.” Invitees included NGO representatives and social scientists, along with one government representative. As stated in the materials available to the participants, “There [were] four primary objectives for the seminar:

Canvas and explore the many ways in which the legal framework within countries supports, impedes, and/or enables the development of civil society, focusing on the special needs and circumstances of poor people;

Analyze specific cases or experiences that illustrate or reveal what might be the most promising approaches for creating an enabling environment and what kinds of roles are needed, with some particular attention to cases that address the needs of poorer countries and the empowerment of poor people;

Review a revised version of the Handbook on NGO Law that is being compiled for the World Bank by the International Center for Not-for-Profit Law (ICNL) under the direction of Leon Irish, and comment on the experience from this initiative over the last several years; and

Provide perspectives and recommendations on what might be the most appropriate and effective roles and initiatives for the Bank to undertake in this area as well as identifying what roles other institutions need to play.

Several papers were presented at the seminar and will shortly be made available on the web site of the World Bank. The Revised Discussion Draft of the World Bank Handbook on Laws Relating to Nongovernmental Organizations, prepared for the World Bank by the International Center for Not-for-Profit Law, is presently being edited to take account of comments made at the seminar and will be available shortly for further review. Information about further discussion and review of all the materials presented at the seminar can be obtained from William Reuben, the Head of the NGO Unit at the World Bank, wreuben@worldbank.org.