Goodbye, Maffezini? On the Recent Developments of Most-Favoured-Nation Clause Interpretation in International Investment Law

Šturma, Pavel

doi:10.1163/15718034-12341317

Cited by 17 publications

(1 citation statement)

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“…4.4 Application of most favoured nation to dispute settlement is often contrary to the intention of international investment agreement parties and a surprise to them Some countries have begun reforming MFN provisions in their IIAs in response to the application of MFN to dispute settlement by some tribunals in the post-Maffezini era (Sturma, 2016) [34]. Many recent IIAs have sought to narrow the ambit of MFN provision, while others have explicitly excluded dispute settlement from its scope [35].…”

Section: Investment Dispute Settlementmentioning

confidence: 99%

Application of MFN to investment dispute settlement: rule of law issues

Sharmin

Laryea

2021

JITLP

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Purpose Over the past two decades, the application of most-favoured-nation (MFN) clauses in international investment agreements (IIAs) to dispute settlement matters has generated controversy. The purpose of this paper is to help resolve some of the controversies by examining the rule of law issues that may arise from such application of MFN. Design/methodology/approach The study describes controversies regarding the application of MFN to dispute settlement as per the extant literature on the subject. It explores the elements of rule of law in investor-state arbitration. The paper then analyses the implications of applying MFN to dispute settlement matters for the elements of rule of law. Based on such analysis, the study argues that the application of MFN to dispute settlement matters undermines certain elements of rule of law. Findings The paper has outlined the relevant elements of rule of law in investor-state arbitration as access to dispute settlement; judicial (or tribunal) independence, fairness and impartiality; consistency and predictability of law and decisions; transparency; accountability and subjection of dispute forums and systems to law. It found that the application of MFN undermines various components of rule of law, in particular of consistency and predictability and the requirement of tribunals to adjudicate within the limits of the law. Originality/value The findings of this study will help future investor-state arbitral tribunals to decide on the application of MFN to dispute settlement matters.

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Section: Investment Dispute Settlementmentioning

confidence: 99%