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The Application of the Most-Favoured-Nation Clause to the Dispute Settlement Provisions of Bilateral Investment Treaties

2013
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Release : 2013
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Book Synopsis The Application of the Most-Favoured-Nation Clause to the Dispute Settlement Provisions of Bilateral Investment Treaties by : Yannick Radi

Download or read book The Application of the Most-Favoured-Nation Clause to the Dispute Settlement Provisions of Bilateral Investment Treaties written by Yannick Radi. This book was released on 2013. Available in PDF, EPUB and Kindle. Book excerpt: Contracting states bring a Trojan Horse into the city when providing for most-favoured-nation clauses (MFN clause) in bilateral investment treaties (BIT). This affects the general equilibrium of the treaties, as recent case law from investment arbitration tribunals illustrates. In these cases the controversial issue is the applicability of the MFN clause to the dispute settlement provisions of the BITs. Arbitration practice and mainstream literature so far have focussed on the specific nature of the dispute settlement mechanism, asking whether the MFN clause should cover it or not. This article analyses the arguments put forward so far on this issue, and argues that by reason of the effet utile the MFN clause always covers the dispute settlement mechanism, unless the opposite intention of the Contracting states can be demonstrated. Furthermore, this article considers that the prevailing focus on the entire mechanism is misleading. The main issue is in fact the scope of application of the MFN clause to the individual provisions on dispute settlement. Underlying this issue there is the tension between the MFN clause and the other provisions of BITs, whatever their procedural or substantive nature. This tension puts into question the rationality of providing for MFN clauses in bilateral investment treaties. But once such a clause is already adopted, this article suggests that the way to domesticate this Trojan Horse is to substitute conditional MFN clauses for the unconditional MFN clauses presently provided for in BITs.

To what extent, if any, are most favoured nation clauses able to be invoked by investment treaty claimants suing under one bilateral investment treaty in relation to procedural rights granted by another bilateral investment treaty?

2014-10-10 Law
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Release : 2014-10-10
Genre : Law
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Book Synopsis To what extent, if any, are most favoured nation clauses able to be invoked by investment treaty claimants suing under one bilateral investment treaty in relation to procedural rights granted by another bilateral investment treaty? by : Sebastian Röder

Download or read book To what extent, if any, are most favoured nation clauses able to be invoked by investment treaty claimants suing under one bilateral investment treaty in relation to procedural rights granted by another bilateral investment treaty? written by Sebastian Röder. This book was released on 2014-10-10. Available in PDF, EPUB and Kindle. Book excerpt: Master's Thesis from the year 2009 in the subject Law - European and International Law, Intellectual Properties, grade: B+, University of Auckland, course: International Arbitration, language: English, abstract: Since 1959, the year in which the first Bilateral Investment Treaty (hereinafter BIT) was concluded, the number of BITs has increased to roundly 2500. The rapid growth of that number spells out the outstanding role BITs nowadays play in the global investment protection regime. Typically the host country has not only entered into a BIT with one country but a number of other countries as well. Due to numerous reasons the BITs concluded by the host country often differ in their wording, scope and the guaranteed range of rights. In order to prevent a discrimination and to ensure a balanced competition in the country’s market with equal opportunities for all market players almost all BITs provide for a so-called Most-Favoured-Nation clause (hereinafter MFN clause). Subject to certain limits such a MFN clause, in principle, operates as follows: as soon as the host state accords a more favourable treatment to a third party in another BIT (third party treaty) the party of the basic treaty can rely on the MFN clause to demand the same treatment. Hence, the most favourable treatment agreed upon with one state automatically sets up the standard for the treatment of any other country given that its BIT contains a MFN clause. Although it might be problematic as to what extent a basic treaty can be altered by the operation of MFN clauses, it is commonly accepted that they principally can allow for the incorporation of more favourable substantial rights. However, most BITs do not only address substantial matters but provide for dispute settlement procedures as well. It was the year 2000 when an arbitration tribunal in fact dealt with such a claim for the first time in detail. The pendent dispute gave rise to a question that surprisingly has scraped a shadowy existence before: Are MFN clauses also able to import procedural rights from one BIT to another? Although the competent tribunal in the now-famous Maffezini decision argued in favour of an application with respect to procedural rights the issue today is still alien from being clarified, since other tribunals subsequently have expressly resisted following the Maffezini decision. The divergent decisions caused great legal uncertainty which is not least due to the textual breadth of the MFN clauses the different tribunals had to deal with. The following essay seeks to “bring light into this legal darkness”.

Application of Most-Favoured-Nation Clauses to Dispute Settlement Provisions of Bilateral Investment Treaties

2016
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Release : 2016
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Book Synopsis Application of Most-Favoured-Nation Clauses to Dispute Settlement Provisions of Bilateral Investment Treaties by : Elizabeth Whitsitt

Download or read book Application of Most-Favoured-Nation Clauses to Dispute Settlement Provisions of Bilateral Investment Treaties written by Elizabeth Whitsitt. This book was released on 2016. Available in PDF, EPUB and Kindle. Book excerpt: Bilateral investment treaties (BITs) provide investors in natural resource projects with stability. Specifically, dispute settlement provisions, a feature of most modern BITs, allow investors to make claims against the host state for alleged breaches of the BIT However, some such provisions establish limits or preconditions with respect to the ability of investors to access international arbitration. Recently, investors have invoked the most-favoured-nation (MFN) clauses of BITs in an attempt to avoid those limits or preconditions. This issue has proven to be very contentious and arbitral tribunals have come to different conclusions with some tribunals willing to extend MFN protection to an investor's procedural rights and others refusing to do so. This article examines the diverging lines of arbitral jurisprudence on this issue and highlights the opposing positions of a doctrinal divide regarding the scope and applicability of MFN protection.

The Interpretation and Application of the Most-Favored-Nation Clause in Investment Arbitration

2022-10-17 Law
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Release : 2022-10-17
Genre : Law
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Book Rating : 898/5 ( reviews)

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Book Synopsis The Interpretation and Application of the Most-Favored-Nation Clause in Investment Arbitration by : Anqi Wang

Download or read book The Interpretation and Application of the Most-Favored-Nation Clause in Investment Arbitration written by Anqi Wang. This book was released on 2022-10-17. Available in PDF, EPUB and Kindle. Book excerpt: The open access publication of this book has been published with the support of the Swiss National Science Foundation. In The Interpretation and Application of the Most-Favored-Nation Clause in Investment Arbitration, Dr. Anqi Wang provides suggestions for MFN drafting in future international investment agreements (IIAs), as well as for MFN application by investor-state dispute settlement (ISDS) tribunals in case of ambiguity. Dr. Wang conducts a systemic review of MFN clause in history and maps all the relevant ISDS cases. She argues that ISDS tribunals should interpret the MFN clause according to the treaty text on a case-by-case basis, and that tribunals should also consider state consent as the foundation for the jurisdiction of international adjudication, current IIA reform, and essential treaty interpretive principles.

The Application of Most-Favored-Nation Clauses to Dispute Resolution Provisions in Bilateral Investment Treaties

2010
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Release : 2010
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Book Synopsis The Application of Most-Favored-Nation Clauses to Dispute Resolution Provisions in Bilateral Investment Treaties by : Jarrod Wong

Download or read book The Application of Most-Favored-Nation Clauses to Dispute Resolution Provisions in Bilateral Investment Treaties written by Jarrod Wong. This book was released on 2010. Available in PDF, EPUB and Kindle. Book excerpt: Many BITs contain the so-called MFN clause, under which a host State may not treat the relevant investment less favorably than the investment of an investor from any other country. Much confusion, however, has arisen on the question of whether an investor may rely on an MFN clause to invoke the dispute resolution provisions of a third party BIT that are comparatively more favorable to the investor. While some ICSID arbitral decisions, including Maffezini v. Spain and Siemens v. Argentina, determined that MFN clauses apply to BIT dispute resolution provisions, other decisions like Salini v. Jordan and Plama v. Bulgaria concluded that they do not. This Article argues that these decisions can in fact be reconciled by analyzing their differences under Article 31 of the Vienna Convention on the Law of Treaties, which in turn requires a determination of whether the particular use sought of the MFN clause falls within its "ordinary meaning." The former category of decisions involved reliance on broadly-rendered MFN clauses to avoid a procedural requirement that delayed, but did not ultimately preclude, ICSID arbitration, and which reliance is as such arguably within the reasonable contemplation of State parties as judged by its "ordinary meaning." The latter category of decisions, however, involved reliance on MFN clauses in BITs that strongly suggested an intent on the part of the parties to exclude from their scope dispute resolution in general, and/or to effect the substitution of an entirely different dispute resolution system, and thereby implicates an aggressive use of the MFN clause that does not sit well with its "ordinary meaning." Thus, the approach advocated in this Article seeks to provide a more comprehensive and coherent framework in which to analyze the relationship between the MFN clause and BIT dispute resolution provisions, anchored by fundamental interpretive principles of customary international law articulated in Article 31 of the Vienna Convention.

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