Is control over risk getting out of control? : An analysis of the concept of control over risk as set out in the 2022 OECD Guidelines in relation to Swedish law

Abstract: In 2017 an amended version of the OECD Transfer Pricing Guidelines was published which included new provisions to prevent BEPS through the shifting of risks. Through the amendment of the Guidelines, it was clarified that for an entity in an MNE to contractually assume a risk, for transfer pricing purposes, it needs to control the risk and have the financial capacity to assume it. Since the proposal of an updated framework regarding risk it has been discussed whether the framework on risk was the right way to go to come to terms with the problem with the shifting of risks and whether the concept of control over risk is in line with the arm’s length principle which constitutes the foundation for the Guidelines. The objectives of the thesis include providing an overview of the OECD framework related to risk, analysing, and evaluating the definition of control over risk, and assessing its application and interpretation in Swedish courts. On the basis of this the objectives are to examine the consequences of the concept and its application in relation to the arm’s length principle and Swedish law and with this discussing the future of the Guidelines in Swedish law. To assess whether an entity in a MNE has control over risk multiple sub-concepts needs to be assessed out of which few have a clear meaning. Of main importance when assessing the concept is to determine the performance of decision-making functions. The interpretation of control over risk has in some cases, in Swedish courts, led to results which are not in line with the principle of legality and the principle of the actual substance of the transaction. Similarly, to the Guidelines, the Swedish courts put emphasis on the performance of decision-making functions in order to have control over risk. Parts of the control over risk concept can be seen as not being in line with the arm’s length principle by imposing higher control and financial capacity requirements on entities in MNEs than what independent enterprises actually have. Because of the inherent problems in defining control over risk, the effects of the interpretation of the concept in Swedish courts, and the non-arm’s length character of the risk assessment it can be questioned which role the Guidelines should have in Swedish law.