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?

Inhaltsverzeichnis (Table of Contents)

• Introduction
• The Relevant Case Law
  • Supporting Cases
    • Emilio Augustin Maffezini v Kingdom of Spain – the seminal case
    • Siemens A.G. v Argentine Republic
    • Gas Natural SDG, S.A. v Argentine Republic
    • Suez, Sociedad General de Aguas de Barcelona S.A. and InterAguas Servicios Integrales del Agua S.A. v Argentine Republic
    • Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. and AWG Group Ltd. v Argentine Republic
  • Rejecting Cases
    • Tecnicas Medioambientales Tecmed S.A. v United Mexican States
    • Salini Costruttori v Jordan
    • Plama Consortium Ltd. v Republic of Bulgaria
    • Telenor Mobile Communications AS v. Republic of Hungary
• The general Ability of MFN Clauses to invoke dispute settlement mechanisms
• The Scope of a MFN Clause in a Particular Case
  • Is International Arbitration more Favourable than Dispute Settlement before the Domestic Courts of the Host State?
  • The Ejusdem Generis Principle - a First Coarse Filter
  • The Interpretation of a MFN clause
  • Distinction between procedural obstacles and the creation of jurisdiction
• Conclusion

Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)

This essay explores the extent to which Most Favored Nation (MFN) clauses in Bilateral Investment Treaties (BITs) can be invoked by investment treaty claimants to access procedural rights granted under a different BIT. The essay aims to clarify the legal uncertainty surrounding this issue by analyzing relevant case law and proposing a systematic approach to applying the relevant criteria.

• The application of MFN clauses to procedural rights in investment arbitration
• The significance of the Maffezini decision and its impact on subsequent case law
• The role of the Ejusdem Generis principle in interpreting MFN clauses
• The distinction between procedural obstacles and jurisdictional issues in the context of MFN clauses
• The limits and potential scope of applying MFN clauses to dispute settlement mechanisms

Zusammenfassung der Kapitel (Chapter Summaries)

• Introduction: This chapter introduces the topic of MFN clauses in BITs and their significance in the global investment protection regime. It highlights the potential for discriminatory treatment of investors from different countries due to variations in BITs and the role of MFN clauses in addressing such disparities. The chapter then focuses on the emerging issue of whether MFN clauses can be invoked to import procedural rights from one BIT to another, highlighting the legal uncertainty created by conflicting tribunal decisions.
• The Relevant Case Law: This chapter presents a comprehensive overview of the case law surrounding the invocation of MFN clauses for procedural rights. It analyzes both decisions supporting and rejecting such an application, providing a detailed overview of the arguments and reasoning employed by the tribunals. The analysis focuses on the seminal Maffezini decision and subsequent cases that have either followed or diverged from its approach.
• The general Ability of MFN Clauses to invoke dispute settlement mechanisms: This chapter examines the general legal principles governing the application of MFN clauses to dispute settlement mechanisms. It discusses the rationale behind the potential for invoking MFN clauses for procedural rights and explores the arguments for and against such an application, particularly in light of the evolving jurisprudence.
• The Scope of a MFN Clause in a Particular Case: This chapter delves into the criteria and limitations governing the application of MFN clauses in specific cases. It examines the key considerations for determining whether a procedural right under one BIT can be imported into another BIT through an MFN clause. These considerations include the relative favorability of different dispute settlement mechanisms, the application of the Ejusdem Generis principle, and the interpretation of MFN clauses in light of the specific provisions of the underlying BITs.

Schlüsselwörter (Keywords)

This essay delves into the complex realm of international investment law, focusing on the interpretation and application of Most-Favored-Nation (MFN) clauses in Bilateral Investment Treaties (BITs). The analysis centers around the legal controversy concerning the invocation of MFN clauses to access procedural rights granted under different BITs, examining key concepts such as dispute settlement mechanisms, jurisdictional issues, and the Ejusdem Generis principle. The essay explores the evolving jurisprudence surrounding these topics, drawing from relevant case law and offering a systematic approach to applying the relevant criteria.