The Interpretation and Application of the Most-Favored-Nation Clause in Investment Arbitration
Published on 15. September 2022
Book
Hardback
328 pages
978-90-04-51788-2 (ISBN)
Description
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.
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.
More details
Series
Language
English
Place of publication
Netherlands
Publishing group
Brill
Target group
Professional and scholarly
Product notice
sewn/stitched
Cloth over boards
Dimensions
Height: 234 mm
Width: 155 mm
Thickness: 19 mm
Weight
626 gr
ISBN-13
978-90-04-51788-2 (9789004517882)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Classification
Person
Anqi Wang, Ph.D. (2021), University of Bern, is a research fellow at the World Trade Institute. Her research focuses on the reform of international investment regime and dispute settlement. She has published articles on international investment arbitration and investment policy.
Content
Acknowledgements??
Abbreviations??
Introduction??
1???History of the ?mfn? Clause in International Law??
?1?The Evolution of the mfn Clause in International Trade Law
?1.1?The Genesis of the ?mfn? Clause in the Middle Ages: From the 11th to the 16th Century??
?1.2?The Appearance of Conditional and Unconditional ?mfn? Clauses: The 18th and 19th Centuries??
?1.3?The Status of the ?mfn? Clause during an Unstable Period for World Trade: The 20th Century Onward??
?2?Incorporation and Development of the mfn Clause in International Investment Law
?2.1?The ?mfn? Clause in the Colonial Era??
?2.2?The ?mfn? Clause in the Post-colonial Era??
?2.3?The ?mfn? Clause in the Global Era??
?2.4?The ?mfn? Clause in the Rebalancing Era??
?3?Codification Efforts by the International Law Commission
?4?Conclusion
2???Interpretation of the ?mfn? Clause??
?1?Customary International Law
?1.1?The ?Expressio Unius est Exclusio Alterius Principle??
?1.2?The ?Ejusdem Generis Principle??
?1.3?The Contemporaneity Principle??
?2?Articles 31 and 32 of the vclt
?2.1?Article 31 of the ?vclt? as Containing the Core Principles of Treaty Interpretation??
?2.1.1?Should Interpreters Follow the Textual or Teleological Approach to Treaty Interpretation?
?2.1.2?Subsequent Agreements and Practices
?2.1.2.1??Subsequent Agreements??
?2.1.2.1.1?Joint Interpretation Authorized by Treaty Texts as Subsequent Agreements
?2.1.2.1.2?Other Forms of Joint Interpretation
?2.1.2.1.3?Non-disputing Party Submissions
?2.1.2.2?Subsequent Practices??
?2.1.3?Good Faith Principle
?2.2?Article 32 of the ?vclt? as Containing Supplementary Methods of Treaty Interpretation??
?3?The Role of Arbitral Precedents
?4?Conclusion
3???Applying the ?mfn? Clause for Higher Substantive Treatment??
?1?The Scope of Treatment Covered by mfn Clauses in iia?s
?1.1?The Beneficiary of ?mfn? Treatment (Ratione Personae)??
?1.2?The Temporal Dimension of ?mfn? Treatment (Ratione Temporis)??
?1.2.1?The Temporal Scope of the mfn Clause
?1.2.1.1??Prospective Formulation of ?mfn? Clauses??
?1.2.1.2?Pre/Post-establishment Approaches to ?mfn? Clauses??
?1.2.2?The Temporal Scope of Treaties
?1.2.2.1??Ratione Temporis and the Basic Treaty??
?1.2.2.2?Ratione Temporis and the Third-Party Treaty??
?1.3?The Subject Matter of ?mfn? Treatment (Ratione Materiae)??
?1.4?Exceptions to ?mfn? Clauses??
?2?mfn Clauses and Substantive Treatment
?2.1?De Facto Breaches of ?mfn? Clauses??
?2.1.1?"In Like Circumstances"
?2.1.2?"Less Favorable Treatment"
?2.1.3?Burden of Proof
?2.1.4?Discriminatory Intent
?2.2?Invoking an mfn Clause in Pursuit of Obtaining a Higher Standard of Protection??
?2.2.1?The Incorporation of Fair and Equitable Treatment (fet) Clauses
?2.2.2?The Incorporation of Full Protection and Security Clauses
?2.2.3?The Incorporation of Expropriation Clauses
?2.2.4?The Incorporation of Umbrella Clauses
?2.2.5?The Incorporation of Other Substantive Treatment
?3?Concluding Remarks
4???Applying the ?mfn? Clause to Avoid Procedural Preconditons??
?1?The Discussion Started by the Maffezini? Case
?2?Exhaustion of Local Remedies and Dispute Settlement Provisions
?2.1?Exhaustion of Local Remedies???
?2.2?Jurisdiction or Admissibility???
?2.2.1?Requiring Remedies to Be Pursued in Local Courts as an Issue of Admissibility
?2.2.1.1?The Failure by Tribunals to Properly Apply the Ejusdem Generis Principle??
?2.2.1.2?Public Policy Considerations??
?2.2.1.3?Neglect to Consider the Precise Formulation of Dispute Settlement Clauses??
?2.2.2?Requiring Remedies to Be Pursued in Local Courts as an Issue of Jurisdiction
?3?What Constitutes "More Favorable" Treatment?
?3.1?The Approach Considering Domestic Court as Less Favorable??
?3.2?"Fork-in-the-Road" Requirements??
?3.3?The Risk of Treaty-shopping: The Siemens Approach??
?4?Conclusion
5???Applying the ?mfn? Clause to Avoid Jurisdictional Obstacles??
?1?State Consent in Investment Arbitration
?2?Cases Where Tribunals Refused to Establish Jurisdiction via the Application of an mfn Clause
?2.1?Application of ?mfn? Clause to Establish Jurisdiction Ratione Personae??
?2.1.1?Broadening the Definition of "Investment"
?2.1.2?Avoiding Legality Requirements
?2.2?Bypassing Limitations Contained in Dispute Settlement Provisions??
?2.3?Replacing Dispute Settlement Provisions in a Basic Treaty??
?2.4?Applying the Basic Treaty Retroactively??
?3?Cases Where Tribunals Established Jurisdiction via the Application of an mfn Clause
?3.1?Bypassing Limitations Contained in Arbitration Provisions??
?3.2?Replacing the Chosen Forum for Dispute Settlement??
?3.3?Manufacturing Jurisdiction through an Application of an ?mfn? Clause??
?4?Can Jurisdiction Be Founded on the Basis of an mfn Clause?
?4.1?Limitation of the Traditional Interpretive Methods??
?4.2?The Incorrect Application of the Ejusdem Generis ?Principle
?4.3?Are the ?ilc? Guiding Principles a Way Out???
?5?Concluding Remarks
6???Conclusion??
?1?Current Drafting Trends in Relation to mfn Clauses
?1.1?Marginalization of the ?mfn? Clause??
?1.1.1?Soft Commitments
?1.1.2?The Total Absence of an mfn Clause
?1.2?Refinement of the ?mfn? Clause??
?1.2.1?Retraining mfn Clause From Substantive Obligations
?1.2.2?Clarifying "in Like Circumstances"
?1.2.3?Excluding Investor-State Dispute Mechanism From mfn Treatment
?2?A More Balanced Approach to mfn Interpretation
Bibliography??
Table of Materials??
Index??
Abbreviations??
Introduction??
1???History of the ?mfn? Clause in International Law??
?1?The Evolution of the mfn Clause in International Trade Law
?1.1?The Genesis of the ?mfn? Clause in the Middle Ages: From the 11th to the 16th Century??
?1.2?The Appearance of Conditional and Unconditional ?mfn? Clauses: The 18th and 19th Centuries??
?1.3?The Status of the ?mfn? Clause during an Unstable Period for World Trade: The 20th Century Onward??
?2?Incorporation and Development of the mfn Clause in International Investment Law
?2.1?The ?mfn? Clause in the Colonial Era??
?2.2?The ?mfn? Clause in the Post-colonial Era??
?2.3?The ?mfn? Clause in the Global Era??
?2.4?The ?mfn? Clause in the Rebalancing Era??
?3?Codification Efforts by the International Law Commission
?4?Conclusion
2???Interpretation of the ?mfn? Clause??
?1?Customary International Law
?1.1?The ?Expressio Unius est Exclusio Alterius Principle??
?1.2?The ?Ejusdem Generis Principle??
?1.3?The Contemporaneity Principle??
?2?Articles 31 and 32 of the vclt
?2.1?Article 31 of the ?vclt? as Containing the Core Principles of Treaty Interpretation??
?2.1.1?Should Interpreters Follow the Textual or Teleological Approach to Treaty Interpretation?
?2.1.2?Subsequent Agreements and Practices
?2.1.2.1??Subsequent Agreements??
?2.1.2.1.1?Joint Interpretation Authorized by Treaty Texts as Subsequent Agreements
?2.1.2.1.2?Other Forms of Joint Interpretation
?2.1.2.1.3?Non-disputing Party Submissions
?2.1.2.2?Subsequent Practices??
?2.1.3?Good Faith Principle
?2.2?Article 32 of the ?vclt? as Containing Supplementary Methods of Treaty Interpretation??
?3?The Role of Arbitral Precedents
?4?Conclusion
3???Applying the ?mfn? Clause for Higher Substantive Treatment??
?1?The Scope of Treatment Covered by mfn Clauses in iia?s
?1.1?The Beneficiary of ?mfn? Treatment (Ratione Personae)??
?1.2?The Temporal Dimension of ?mfn? Treatment (Ratione Temporis)??
?1.2.1?The Temporal Scope of the mfn Clause
?1.2.1.1??Prospective Formulation of ?mfn? Clauses??
?1.2.1.2?Pre/Post-establishment Approaches to ?mfn? Clauses??
?1.2.2?The Temporal Scope of Treaties
?1.2.2.1??Ratione Temporis and the Basic Treaty??
?1.2.2.2?Ratione Temporis and the Third-Party Treaty??
?1.3?The Subject Matter of ?mfn? Treatment (Ratione Materiae)??
?1.4?Exceptions to ?mfn? Clauses??
?2?mfn Clauses and Substantive Treatment
?2.1?De Facto Breaches of ?mfn? Clauses??
?2.1.1?"In Like Circumstances"
?2.1.2?"Less Favorable Treatment"
?2.1.3?Burden of Proof
?2.1.4?Discriminatory Intent
?2.2?Invoking an mfn Clause in Pursuit of Obtaining a Higher Standard of Protection??
?2.2.1?The Incorporation of Fair and Equitable Treatment (fet) Clauses
?2.2.2?The Incorporation of Full Protection and Security Clauses
?2.2.3?The Incorporation of Expropriation Clauses
?2.2.4?The Incorporation of Umbrella Clauses
?2.2.5?The Incorporation of Other Substantive Treatment
?3?Concluding Remarks
4???Applying the ?mfn? Clause to Avoid Procedural Preconditons??
?1?The Discussion Started by the Maffezini? Case
?2?Exhaustion of Local Remedies and Dispute Settlement Provisions
?2.1?Exhaustion of Local Remedies???
?2.2?Jurisdiction or Admissibility???
?2.2.1?Requiring Remedies to Be Pursued in Local Courts as an Issue of Admissibility
?2.2.1.1?The Failure by Tribunals to Properly Apply the Ejusdem Generis Principle??
?2.2.1.2?Public Policy Considerations??
?2.2.1.3?Neglect to Consider the Precise Formulation of Dispute Settlement Clauses??
?2.2.2?Requiring Remedies to Be Pursued in Local Courts as an Issue of Jurisdiction
?3?What Constitutes "More Favorable" Treatment?
?3.1?The Approach Considering Domestic Court as Less Favorable??
?3.2?"Fork-in-the-Road" Requirements??
?3.3?The Risk of Treaty-shopping: The Siemens Approach??
?4?Conclusion
5???Applying the ?mfn? Clause to Avoid Jurisdictional Obstacles??
?1?State Consent in Investment Arbitration
?2?Cases Where Tribunals Refused to Establish Jurisdiction via the Application of an mfn Clause
?2.1?Application of ?mfn? Clause to Establish Jurisdiction Ratione Personae??
?2.1.1?Broadening the Definition of "Investment"
?2.1.2?Avoiding Legality Requirements
?2.2?Bypassing Limitations Contained in Dispute Settlement Provisions??
?2.3?Replacing Dispute Settlement Provisions in a Basic Treaty??
?2.4?Applying the Basic Treaty Retroactively??
?3?Cases Where Tribunals Established Jurisdiction via the Application of an mfn Clause
?3.1?Bypassing Limitations Contained in Arbitration Provisions??
?3.2?Replacing the Chosen Forum for Dispute Settlement??
?3.3?Manufacturing Jurisdiction through an Application of an ?mfn? Clause??
?4?Can Jurisdiction Be Founded on the Basis of an mfn Clause?
?4.1?Limitation of the Traditional Interpretive Methods??
?4.2?The Incorrect Application of the Ejusdem Generis ?Principle
?4.3?Are the ?ilc? Guiding Principles a Way Out???
?5?Concluding Remarks
6???Conclusion??
?1?Current Drafting Trends in Relation to mfn Clauses
?1.1?Marginalization of the ?mfn? Clause??
?1.1.1?Soft Commitments
?1.1.2?The Total Absence of an mfn Clause
?1.2?Refinement of the ?mfn? Clause??
?1.2.1?Retraining mfn Clause From Substantive Obligations
?1.2.2?Clarifying "in Like Circumstances"
?1.2.3?Excluding Investor-State Dispute Mechanism From mfn Treatment
?2?A More Balanced Approach to mfn Interpretation
Bibliography??
Table of Materials??
Index??