Introduction

Sharmin, Tanjina

doi:10.1007/978-981-15-3730-1_1

Tanjina Sharmin³

Part of the book series: International Law and the Global South ((ILGS))

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Abstract

This chapter introduces the topic and scope of this book. MFN clauses frequently appear in IIAs providing an obligation on the host-states to accord the beneficiary states, their nationals and entities, treatment no less favourable than that is accorded to any third state. There are divergent opinions about the scope of MFN clauses in IIAs and about the approaches for determining such scope. IIA MFN clauses are treaty-based obligations as opposed to the principles of customary international law. As a treaty-based obligation, the scope of MFN in IIAs will always depend on how the clauses are drafted and how the adjudicatory forums interpret them. Moreover, drafting of MFN clauses varies from IIA to IIA, and presently, there are more than 3000 IIAs in force. Consequently, the question arises, whether it is feasible to examine the scope of MFN clauses in IIAs. Although the scope of MFN clauses in IIAs is a matter of interpretation, it is possible to clarify their scope to a significant extent by an evaluation of existing jurisprudence on their application. Accordingly, the central thrust of this book is to draw out the proper scope of MFN clauses in IIAs by evaluating the existing jurisprudence, by an analysis of the cases and scholarly literature, together with the text of IIAs. This book also examines issues related to the interpretation of IIAs. To do so, it investigates three sub-issues: firstly, whether there exists a set of uniform principles and rules for interpreting MFN clauses; secondly, whether arbitral tribunals have consistently applied the interpretative principles; and thirdly, whether tribunals should take into account the implications of applying MFN clauses extensively. Besides the general contribution of this book mentioned above, the introductory chapter also demonstrates, why it is important to examine the developing states’ experience in investor-state arbitration regarding the application of MFN.

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Notes

1.
International Investment Agreement (IIA) is a popular term frequently used in literature to describe a network of bilateral, trilateral, plurilateral and regional investment treaties. International treaties on trade are not included in this network. However, the investment chapters of trade treaties are included. For details, see, United Nations Conference on Trade and Development (UNCTAD), Investment Policy Hub http://investmentpolicyhub.unctad.org/IIA/AdvancedSearchBIT (2013).
2.
For details on the features of IIAs, see, UNCTAD, International Investment Agreements: Key Issues, volume 1–3, Karl P Sauvant (eds) (United Nations, 2004–2005), UNCTAD/ITE/IIT/2004/10 (Vol. I), UNCTAD/ITE/IIT/2004/10 (Vol. II), UNCTAD/ITE/IIT/2004/10 (Vol. III).
3.
The first IIA was, the Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments (Germany-Pakistan BIT), signed on 25 November 1959, (entered into force on 28 April 1962). For more details on history, see Chap. 2 of this book.
4.
UNCTAD, Policy Hub, above n 1. The UNCTAD website demonstrates that presently, amongst the total number of IIAs in force, 2358 IIAs are bilateral investment treaties; for the most recent data, also see, UNCTAD, IIA Issue Note, May 2018, available at http://unctad.org/en/PublicationsLibrary/diaepcbinf2018d1_en.pdf. The issue note mentions that ‘in 2017, countries concluded 18 new IIAs: 9 bilateral investment treaties (BITs) and 9 treaties with investment provisions (TIPs). This brought the size of the IIA universe to 3,322 agreements (2,946 BITs and 376 TIPs), of which 2,638 were in force at year-end.’
5.
For the definition of MFN, see, International Law Commission (ILC), ‘Draft Articles on Most Favoured Nation Clause 1978 with Commentaries,’ II Yearbook of the International Law Commission (1978) 24, Articles 4 and 5, available at http://legal.un.org/ilc/texts/instruments/english/commentaries/1_3_1978.pdf; for the fact that MFN frequently appears in IIAs, see, UNCTAD, Bilateral Investment Treaties in the Mid-1990 s, UN Doc UNCTAD/ITE/IIT/7 (1998); UNCTAD, Bilateral Investment Treaties 1995-2006/5, UN Doc UNCTAD/ITE/IIT/2006/5 (2007).
6.
Rudolf Dolzer and Christoph Schreuer, Principles of International investment law (Oxford University Press, 2008).
7.
World Trade Organisation (WTO), Marrakesh Agreement Establishing the WTO (1994), General Agreement on Tariffs and Trade (1994), (Annex 1 of the Marrakesh Agreement) Articles I, XII, XVII; General Agreement on Trade in Services, (Annex 1 B of the Marrakesh Agreement), Article II; Agreement on Trade Related Aspects of Intellectual Property Law TRIPS, (Annex 1c of the Marrakesh Agreement), Article 4, WTO legal texts are available at https://www.wto.org/english/docs_e/legal_e/final_e.htm; MFN clauses constitute a common feature of Free Trade Agreements. Generally, for the operation of MFN in International Trade Law, see, Fred Trost, ‘Reconciling Regional Trade Agreements with the Most Favoured Nation Principle in WTO-GATT,’ (2008) 5 Macquarie Journal of Business Law 43; Akiko Yanai, ‘The Function of MFN clause in the Global Trading System,’ (IDE APEC Study Centre, Working Paper Series 01/02-No.3, March 2002); Donald McRae, ‘MFN in the GATT and WTO,’ (2012) 7(1) Asian Journal of WTO and International Health Law and Policy, 1–24; on the difference between the operation of MFN in International Trade and Investment Law Regime, see, Jurgen Kurtz, ‘The MFN Standard and Foreign Investment: An Uneasy Fit,’ (Kurtz 2004) 5 Journal of World Investment and Trade 861. This issue is further discussed in Chap. 2, Sect. 3 and 4.
Available at http://www.ide.go.jp/library/English/Publish/Download/Apec/pdf/2001_15.pdf.
8.
The International Law Commission (ILC), Report on the Sixty Seventh Session, Annex. Final Report of the Study Group on the Most-Favoured-Nation (the 2015 ILC Report), GE.15-13770 United Nations General Assembly A/70/10 (2015), available at http://legal.un.org/ilc/reports/2015/english/annex.pdf.
9.
Ibid.
10.
Details of those failed attempts are discussed in Chap. 2.
11.
Peter Nunnenkamp, ‘FDI for Development-Assessing the Case for a Multilateral Investment Agreement from the Perspective of Developing Countries,’ 4 Journal of World Investment 585 (2003) at 585–586. On a different level, there are debates as to whether a multilateral investment treaty framework would indeed be beneficial for the developing countries. Nunnenkamp also commented that in strictly economic terms, the case for a multilateral investment agreement is considerably weaker than its proponents are claiming. Even if a multilateral investment agreement can stimulate foreign direct investment capital flow, the developing countries must have reached a minimum level of economic development before they can be benefitted by such foreign direct investment (FDI) inflow.
12.
Jarrod Wong, ‘Umbrella Clauses in Bilateral Investment Treaties: Of Breaches of Contract, Treaty Violations, and the Divide between Developing and Developed Countries in Foreign Investment Disputes,’ (2006) 14 George Mason Law Review 135, at 138.
13.
Ibid.
14.
Details will be discussed in Chap. 2.
15.
Efraim Chalamish, ‘The Future of Bilateral Investment Treaties: A De Facto Multilateral Agreement,’ (2009) 34 Brooklyn Journal of International Law 303 at 305. Chalamish has argued that in the context of the failure of multilateral negotiations, IIAs, through their inclusion of MFN clauses form a complex network that resembles a de facto multilateral agreement.
16.
Stephan W. Schill, ‘Multi-lateralization through Most-Favoured Nation Treatment,’ in The Multi-lateralization of International Investment Law, (Cambridge University Press, 2010).
17.
Ibid.
18.
Chalamish, above n 15, at 309–310. Chalamish has commented that historically, the capital-exporting developed countries have always dominated the IIA negotiation process while developing countries have very limited negotiation power. Consequently, most of the provisions of IIAs are aligned with the investors’ interests instead of the sovereignty of the developing country.
19.
UNCTAD (2018) World investment report, p. 48. https://unctad.org/en/PublicationsLibrary/wir2018_overview_en.pdf. Accessed 7 July 2019, p. at xii. UNCTAD commented that in 2018, FDI remained as the largest external source of finance for developing economies.
20.
The 2015 ILC Report, above n 8.
21.
Further details on gaps in the ILCs’ final report are discussed later under the heading ‘Literature Review.’
22.
The ILC, Draft Articles, above n 5.
23.
Ibid, Articles 4–5.
24.
The ILC, Draft Articles, above n 5, Article 4.
25.
Ibid, Article 5.
26.
Stephen W. Schill, ‘Multilateralizing Investment Treaties through Most-Favored-Nation Clauses’ (2009) 27 Berkeley Journal of International Law, 496–569.
27.
UNCTAD, Most-Favoured-Nation Treatment, UNCTAD Series on issues in international investment agreements, UN Doc UNCTAD/ITE/IIT/10 vol. III (1999), Sect. 1, available at http://unctad.org/en/Docs/psiteiitd10v3.en.pdf.
28.
OECD, ‘Most-Favoured-Nation Treatment in International Investment Law,’ in International Investment Law: A Changing Landscape: A Companion Volume to International Investment Perspectives (OECD Publishing, 2006) 127–161, 129 available at https://www.oecd.org/investment/internationalinvestmentagreements/40077165.pdf.
29.
World Bank, ‘Guidelines on the Treatment of Foreign Direct Investment’ World Bank, Legal Framework for the Treatment of Foreign Investment (The World Bank, 1992, later reprinted in 1992 31 ILM 1379). Guideline No. III contains MFN. Guideline 1 (3) provided that ‘these Guidelines are based on the general premise that equal treatment of investors in similar circumstances and free competition among them are prerequisites of a positive investment environment.’ The guidelines are available at https://www.italaw.com/documents/WorldBank.pdf.
30.
Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (Oxford University Press, 2012), Chap. 5.
31.
UNCTAD, Bilateral Investment Treaties 1995–2006: Trends in Investment Rulemaking, UN Doc UNCTAD/ITE/IIT/2006/5 (2007), at 38, available at http://unctad.org/en/docs/iteiia20065_en.pdf.
32.
Schill, above n 26, 508–509.
33.
Phillip McCalman, ‘Multi-Lateral Trade Negotiations and the Most-Favoured Nation Clause’ (2002) 57(1) Journal of International Economics 151–176.
34.
Kamal Saggi, ‘Tariffs and the Most-Favored Nation Clause’ (2004) 63(2) Journal of International Economics 341–368.
35.
Ibid.
36.
Schill, above n 26, 508–509.
37.
Jagdeep S. Bhandari and Alan O. Sykes, Economic Dimension in International Law: Comparative and Empirical Perspectives (Cambridge University Press 1997) 58–65.
38.
Ibid.
39.
For example, Coutain, Bryan, ‘The Unconditional Most-Favoured-Nation Clause and the Maintenance of the Liberal Trade Regime in the Post-war 1870s’ (2009) 63 International Organization 139.
40.
For example, Eugene J. Conroy, ‘American Interpretation of the Most Favored Nation Clause,’ (1927) 12 Cornell Law Review, 327.
41.
Such a stance was taken by the Annulment Committee in, MTD Equity Sdn Bhd. & MTD Chile S.A. v Republic of Chile (MTD v Chile), ICSID Case No. ARB/01/7, Decision on Annulment, dated 21 March 2007, para 64. The Annulment Committee observed that MFN clause could import any more favourable substantive treatment standard from other treaties; also see, the observation by the arbitral tribunal in, EDF International S.A. v Saur International S.A. and Leon Participaciones Argentinas S.A. v Argentina Republic (EDF v Argentina), (ICSID Case No. ARB/03/23, Award, 11 June 2012), paras 936–937. The EDF tribunal stressed that as long as the substantive benefits were concerned, MFN clauses could have extensive application. These cases are reviewed in Chap. 4. In contrast, some more recent arbitral decisions have taken a stance that even within substantive benefits; MFN clauses can apply only within certain boundaries. For example, see, Ickale Insaat Limited Sirketi v Turkmenistan (Ickale v Turkmenistan), ICSID Case No. ARB/10/24, Award, dated 8 March 2016, para 329. Some other recent cases on this issue are discussed in Chap. 4.
42.
A survey conducted by UNCTAD revealed that from 1987–2012, 500 investor-state disputes have been launched, 90% of them since the year, 2000. See, UNCTAD, IIA Issue Note, April 2012, http://unctad.org/en/PublicationsLibrary/webdiaeia2012d10_en.pdf. Also see, Sharon Beder, Investor-State Dispute Settlement, Trade and Foreign Investment (Protecting the Public Interest) (Bill 2014).
43.
Asian Agricultural Products Ltd v Sri Lanka, ICSID, Case No ARB/87/3, Final Award, dated 27 June 1990); CMS Gas Transmission Co v Argentina, ICSID Case No ARB/01/8; CME Czech Republic BV v Czech Republic UNCITRAL, Final Award, dated 14 March 2003; White Industries Australia Ltd v India UNCITRAL, Final Award, dated 30 November 2011.
44.
MTD v Chile, above n 41, Award, dated, 25 May 2004; Rumeli Telekom v Kazakhastan (ICSID, Case No ARB/05/16, Award, dated 29 July 2008; ADF Group Inc. v United States of America, ICSID Case No ARB (AF)/00/1, Award, dated 9 January 2003; Bayindir Insaat v Pakistan, ICSID, Case No ARB/03/29, Decision of Jurisdiction, dated 14 November 2005; ATA Construction v Jordan, ICSID, Case No ARB/08/2, Award, dated 18 May 2010; Sergei Paushok, v Mongolia UNCITRAL, Award on Jurisdiction and Liability, dated 28 April 2011.
45.
EDF v Argentina, above n 41; Mr. Franck Charles Arif v Republic of Moldova, ICSID Case No ARB/11/23, Award, dated 8 April 2013; WaguihElie v Egypt, ICSID Case No ARB/05/15, Award, dated 1 June 2009; Abaclat and Others v Argentina, ICSID, Case No ARB/07/5, Decision on Jurisdiction, dated 4 August 2011.
46.
For example, MFN failed to import more favourable substantive benefits in, ADF Group v United States of America, above n 44; Metal –Tech Ltd v Republic of Uzbekistan, ICSID Case No. ARB/10/3, Award, dated 4 October 2013, para 145; Ickale v Turkmenistan, above n 41, Award, para 329. More cases are discussed in Chap. 5.
47.
For example, see, Ickale v Turkmenistan, above n 41, para 329. Some other recent cases on this issue are discussed in Chap. 4.
48.
The first scholarly work that purported to compare the rate of failure of MFN to import substantive benefits in practice with the long prevalent assumption about the unlimited application of MFN to substantive benefits was, David D. Caron and Esme Shirlow, ‘Most-Favoured-Nation Treatment: Substantive Protection’ in Building International investment law: The First 50 Years of ICSID 399, 408–13 (Meg Kinnear, Geraldine R. Fischer, Jara Minguez Almeida, Luisa Fernanda Torres & Mairee Uran Bidegain eds, 2015). More recently, similar opinion is expressed in, Simon Batifort and J. Benton Heath, ‘The New Debate on the Interpretation of MFN Clauses in Investment Treaties: Putting the Brakes on Multilateralization,’ (2017) 111:4 The American Journal of International Law, 873–913. However, Batifort and Heath did not argue for any conclusive stance; similar conclusion is drawn by, Facundo Perez-Aznar, The Use of Most-Favoured-Nation Clauses to Import Substantive Treaty Provisions in International Investment Agreements, (2017) 201 Journal of International Economic Law, 777–805.
49.
Ibid, Caron and Shirlow.
50.
Batifort and Heath, above n 48.
51.
Emilio Agustin Maffezini v The Kingdom of Spain (Maffezini v Spain), ICSID Case No ARB/97/7, (Decision on Objections to Jurisdiction) dated 25 January 2000.
52.
Agreement between the Republic of Chile and the Kingdom of Spain for Protection and Promotion of Reciprocal Investment (the title was originally in Spanish, translated by the researcher) (Chile-Spain BIT), signed on 2 October 1991, (entry into force on 28 March 1993).
53.
The cases are reviewed in Chaps. 5 and 6. However, some examples are as follows: Siemens v Argentine Republic, ICSID Case No ARB/02/08, Decision on Jurisdiction, dated 3 August 2004; Gas Natural SDG v Argentina ICSID Case No ARB/03/10, Decision on Preliminary Questions on Jurisdiction, dated 17 June 2005; Hochtief AG v Argentina, ICSID Case No ARB/07/31, Decision on Jurisdiction, dated, 24 October 2011; RosInvestCo UK Ltd v Russia, Arbitration Institute of the Stockholm Chamber of Commerce, Case No V 079/2005, Award, dated 12 September 2010.
54.
Wintershall v Argentina, ICSID Case No ARB/04/14, Award, dated 8 December 2008; Daimler Financial Services AG v Argentina, ICSID Case No ARB/05/1, Award on Jurisdiction, dated 22 August 2012; ICS Inspection v Argentina, PCA Case No 2010-9, Award on Jurisdiction, dated 10 February 2012; Kilic Insaat v Turkmenistan, ICSID Case No ARB/10/01, Award, dated 2 July 2013; Plama Consortium v Bulgaria, ICSID Case No ARB/03/24, Decision on Jurisdiction, dated 8 February 2005; Salini v Jordan, ICSID Case No arb/02/13, Award, dated 31 January 2006; Vladimir Berschader v Russia, Arbitration Institute of the Stockholm Chamber of Commerce, Case No 080/2004, Award, dated 21 April 2006); Telenor Mobile v Hungary, ICSID Case No ARB/04/15, Award, dated 13 September 2006); Renta4 SVSA v Russia Arbitration Institute of the Stockholm Chamber of Commerce, Case No V 024/2007, Award, dated 20 March 2009; Tza Yap Shum v Peru, ICSID Case No ARB/07/6, Award, dated 19 June 2009; Austrian Airlines v The Slovak Republic UNCITRAL, 20 October 2009; European American Investment Bank v Slovak Republic, UNCITRAL, Award, dated 12 October 2012; Accession Mezzanine v Hungary ICSID, Case No ARB/12/3, Decision on the Objection by the Respondents under ICSID Arbitration Rule 41(5), dated 16 January 2013.
55.
The 2015 ILC Report, above n 8, 147–191.
56.
Ibid, 149.
57.
The 2015 ILC Report, above n 8, 162; Vienna Convention on the Law of Treaties (VCLT), signed on 23 May 1969, 1155, 1-18232 United Nations Treaty Series 332 (entered into force on 27 January 1980).
58.
The 2015 ILC Report, above n 8, 151.
59.
Zachary Douglas, ‘The MFN Clause in Investment Arbitration: Treaty Interpretation Off the Rails’ (2011) 2 Journal of International Dispute Settlement 97–113.
60.
Ibid, 97.
61.
Alejandro Faya Rodriguez, ‘The Most-Favored-Nation Clause in International Investment Agreements A Tool for Treaty Shopping?,’ (2008) 25(1) Journal of International Arbitration 89–102.
62.
Ibid.
63.
Batifort and Heath, above n 48.
64.
Ibid.
65.
Perez-Aznar, above n 48, 777; Facundo Perez-Aznar, ‘Symposium on Simon Batifort and J. Benton Heath, “The New Debate on the Interpretation of MFN Clauses in Investment Treaties: Putting the Brakes on Multilateralization” the Fictions and Realities of MFN Clauses in International Investment Agreements,’ (2018) 112 AJIL Unbound 55.
66.
Martins Paparinskis, ‘MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the Conventional Wisdom,’ (2018) 112 AJIL Unbound, 49.
67.
Schill, above n 26 at 496–506.
68.
Ibid, 501.
69.
Stephanie L. Parker, ‘A BIT at a Time: The Proper Extension of the MFN Clause to Dispute Settlement Provisions in Bilateral Investment Treaties’ (2012) 2(1) The Arbitration Brief 30–63.
70.
Yas Banifatemi, ‘The Emerging Jurisprudence on the Most-Favoured-Nation Treatment in Investment Arbitration’ in A. Bjorklund, I. Laird, S. Ripinsky (eds), Investment Treaty Law: Current Issues III (British Institute of International and Comparative Law, 2009), 241.
71.
Ibid.
72.
UNCTAD, ‘Most Favoured-Nation Treatment,’ II UNCTAD Series on International Investment Agreements, UNCTAD/DIAE/IA/2010/1, dated 24 January 2011, at 66–67; also see, August Reinisch, ‘Jurisdiction and Admissibility in International investment law,’ (2017) 16 The Law and Practice of International Courts and Tribunals, 21–43. Chap. 5 discusses this issue in detail.
73.
United Kingdom of Great Britain and Northern Ireland v Albania (Corfu Channel case), Preliminary Objections, ICJ Report 1948, 15; Jan Paulsson, ‘Jurisdiction and Admissibility,’ in Global Reflections on International Law, Commerce and Dispute Resolution, Liber Amicorum in Honour of Robert Briner (2005) 616 www.iccbooks.com.
74.
Ibid.
75.
Chapter 6 discusses this issue in detail. However, in the present context, generally on the consent-based jurisdiction of investor-state tribunals, see, Michael Waibel, ‘Investment Arbitration: Jurisdiction and Admissibility,’ in M Bungenberg, J, Griebel, S. Hobe and A Renisch (eds), International investment law, A Handbook (2015) 1212.
76.
For example, see, Salini v Jordan; Berschader v Russia; Plama v Bulgaria; Accession Mezzanine v Hungary; Austrian Airlines v Slovakia Republic, above n 54.
77.
Martins Paparinskis, ‘MFN Clauses and International Dispute Settlement: Moving beyond Maffezini and Plama’ (2011) 26(2) ICSID Review 14–58.
78.
Ibid.
79.
Rudolf Dolzer and Terry Myers, ‘After Tecmed: Most-Favoured-Nation Clauses in Investment Protection Agreements,’ (2004) 19 ICSID Review 49.
80.
Ibid.
81.
Dozler and Myers, above n 79.
82.
Okezie Chukwumerije, ‘Interpreting Most-Favoured-Nation Clauses in Investment Treaty Arbitrations’ (2007) 8 The Journal of World Investment & Trade 597–646.
83.
Ibid.
84.
Tony Cole, ‘The Boundaries of Most Favored Nation Treatment in International investment law’ (2012) 33 Michigan Journal of International Law 537–586.
85.
Ibid.
86.
Batifort and Heath, above n 48, 873.
87.
Ibid, 909.
88.
Stephan W. Schill, ‘Notes and Comments: MFN Clauses as Bilateral Commitments to Multilateralism: A Reply to Batifort and Heath,’ (2017) 111:4 the American Journal of International Law 914–935.
89.
The ILC, the 1978 Draft Articles with Commentaries, above n 5, Article 7.
90.
For illustrations of drafting variations, see Chap. 2.
91.
These issues are examined in Chaps. 2 and 7.
92.
This issue is examined in Chap. 3.
93.
Chapters 4, 5 and 6 examine this issue.
94.
Ibid.
95.
For example, Article I (1) of the 1994 General Agreement on Tariffs and Trade (GATT), above n 7 provides that, ‘with respect to customs duties and charges…any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.’ Article I (2), (3) and (4) of GATT 1994 then provide for the exceptions to the MFN obligation contained in Article I (1). These exceptions ensure the non-application of MFN to preferential treatments in force amongst some specific countries listed in GATT Annexures A-F. Article I (2) allows an exception to MFN in regard to historical preferences which were in force at the signing of GATT. There are several other exceptions to the MFN obligation under Article I of GATT. For example, regional integration (GATT 1994, Article XXIV), non-application of MFN to multilateral trade agreements between particular member states (GATT 1994, Article XIII), Generalised System of Preferences (GSP) allowing lower tariff rates for developing countries (Decision of GATT Contracting Parties of 28 November 1979, BISD 26S/203), general exceptions for protecting public morals, life and health (GATT 1994, Article XX), security exceptions (GATT 1994, Article XXI) and exceptions regarding frontier traffic with adjacent countries (GATT 1994, Article XXIV(3). Similar MFN obligations with specific exceptions can be found in the Agreement on Trade Related Aspects of Intellectual Property Law (TRIPS), above n 7, and in the General Agreement on Trade in Services (GATS), above n 7.
96.
For details, see the concluding chapter.
97.
Ibid.
98.
Jarrod Wong, above n 12. Wong commented that even though a bilateral investment treaty imposes reciprocal obligations on both Contracting States, its effects are asymmetrical. The result is that developing countries seek to interpret restrictively any BIT provision that accords rights to the investors and imposes obligations on the host-state, whereas developed countries will read the same provision expansively.
99.
Sergio Puig, Anton Strezhnev, The David Effect and ISDS, European Journal of International Law, Volume 28, Issue 3, August 2017, Pages 731–761, https://doi.org/10.1093/ejil/chx058; also see, Paul Michael Blyschak, ‘State Consent, Investor Interests and the Future of Investment Arbitration: Reanalyzing the Jurisdiction of Investor-State Tribunals in Hard Cases’ (2009) 9 Asper Review Internaitonal Business & Trade Law, 99.
100.
Susan D Franck., ‘The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions’ (2005) 73 Fordham Law Review 1521.
101.
This chapter discusses ten publicly available arbitral decisions which allowed the application of MFN to substantive benefits. The cases are as follows: MTD Equity Sdn Bhd. & MTD Chile S.A. v Republic of Chile (MTD v Chile), ICSID Case No. ARB/01/7, Award, dated 25 May 2004; EDF International S.A. v Saur International S.A. and Leon Participaciones Argentinas S.A. v Argentina Republic (EDF v Argentina), ICSID Case No. ARB/03/23, Award, dated 11 June 2012; White Industries Australia Limited v The Republic of India (White Industries v India), UNCITRAL, Final Award, dated 20 November 2011; Bayindir Insaat Turizm Ticaret ve Sanayi A.S. v Islaimc Republic of Pakistan (Bayindir v Pakistan), ICSID Case No. ARB/03/29, Award, dated 27 August 2009; Hesham Talaat M. Al-Warraq v The Republic of Indonesia (Al-Warraq v Indonesia), UNCITRAL, Final Award (15 December 2014); Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v. Republic of Kazakhstan (Rumeli Telekom and Telsim Mobil v Kazakhstan), ICSID Case No. ARB/05/16, Award, dated 29 July 2008; Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v. The Government of Mongolia (Sergei Paushok V Mongolia), UNCITRAL, Award on Jurisdiction and Liability, dated 28 April 2011; Mr. Franck Charles Arif v Republic of Moldova (Franck Charles Arif v Moldova), ICSID Case No. ARB/11/23, Award, dated 8 April 2013; and OAO Tatneft v. Ukraine, UNCITRAL, Award on Merits, dated 29 July 2014; Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The Argentine Republic (Teinver v Argentina), ICSID Case No. ARB/09/1, Award, dated 21 July 2017. As mentioned in above n 5, Batifort and Heath identified a total of 12 cases in which MFN succeeded to import more favourable substantive benefits. Their list includes all ten cases listed above. However, Batifort and Heath mentioned two more cases which are not studied in this section, namely, L.E.S.I. S.p.A. and ASTALDI S.p.A. v. République Algérienne Démocratique et Populaire, ICSID Case No. ARB/05/3, Award, dated 12 November 2008, (this decision is written in French, and no authentic English translation is available to this researcher). It must be noted that this chapter only studies cases in which an award or decision is rendered by the arbitral tribunals. The chapter does not study cases which are pending for a decision. It must also be noted that in Teinver v Argentina, application of MFN to procedural prerequisites to arbitration was rejected in the Decision of the Tribunal on Jurisdiction, dated 21 December 2012. The Decision on Jurisdiction will be studied in Chap. 5.
Chapter 4 also discusses 11 cases in which MFN failed. The cases are as follows: ADF Group Inc. v United States of America (ADF v USA), (ICSID Case No. ARB (AF)/00/1, Award, 9 January 2003); Metal –Tech Ltd v Republic of Uzbekistan, (ICSID Case No. ARB/10/3, Award, 4 October 2013); Chemtura Corporation v Government of Canada (Chemtura v Canada), UNCITRAL, Award of the tribunal, dated 2 August 2010; Mesa Power Group LLC v Government of Canada (Mesa Power v Canada), UNCITRAL, PCA Case No. 2012-17, Award of the tribunal, dated 24 March 2016; Apotex Holdings Inc. and Apotex Inc. United States of America (Apotex v USA), ICSID Case No. ARB(AF)/12/1, Award, dated 25 August 2014; Ickale Insaat Limited Sirketi v Turkmenistan (Ickale v Turkmenistan), ICSID Case No. ARB/10/24, Award, dated 8 March 2016; UABE Energija Lithuania v Latvia (UABE Energija v Latvia), ICSID Case No. ARB/12/33, Award, dated 22 December 2017; CMS Gas Transmission Company v The Argentine Republic (CMS v Argentina), (ICSID Case No. ARB/01/8, Award, 12 May 2005); GEA Group Aktiengesellschaft v Ukraine (GEA v Ukraine), ICSID Case No. ARB/08/16, Award, dated 31 March 2011; Cargill Incorporated v The United Mexican States (Cargill v Mexico), (ICSID Case No. ARB (AF)/05/2, Award, 18 September 2009); Windstream Energy LLC v Canada (Windstream Energy v Canada), Permanent Court of Arbitration, In the Matter of an Arbitration under Chapter Eleven of the North American Free Trade Agreement And the 2010 UNCITRAL Arbitration Rules, Award, 27 September 2016. Section 3 also studies five cases in which MFN remained undecided in the sense that the tribunals have rendered a decision but left the issue of MFN undecided since it was not necessary for them. The cases are as follows: Gold Reserve Inc. v Bolivarian Republic of Venezuela (Gold Reserve v Venezuela), (ICSID Case No. ARB (AF)/09/1, Award dated 22 September 2014); ATA Construction, Industrial and Trading Company v The Hashemite Kingdom of Jordan (ATA Construction v Jordan), (ICSID Case No. ARB/08/2, Award dated 18 May 2010); William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v Government of Canada (Bilcon v Canada), UNCITRAL, PCA Case No. 2009-04; Abaclat and others v The Argentine Republic (Abaclat v Argentina), ICSID Case No. ARB/O7/5, Decision on Jurisdiction and Admissibility, dated 4 August 2011; Gemplus S.A., SLP S.A., Gemplus Industrial S.A. de C.V. and Talsud S.A. v The United Mexican States (Gemplus v Mexico), (ICSID Case No. ARB (AF)/04/03 and ARB (AF)/04/4, Award, 16 June 2010).
It must be noted that the cases studied in Chap. 4 do not constitute any exhaustive list of cases in which MFN has failed. However, the list of cases in which MFN succeeded to import substantive benefits from other IIAs is exhaustive. More explanation on the process of case selection is given in Chap. 4.
102.
This author has identified the cases by an extensive research and believes that they include all publicly available decided cases until 2018 in which MFN was applied to bypass procedural prerequisites to arbitration. Websites of UNCTAD Investment Policy Hub and ITALAW are heavily relied on to identify the cases. This chapter does not review any pending case. It reviews cases in which the tribunals have rendered a decision. In most of the cases, Argentina was the respondent host-state which is a coincidence and may represent the fact that a large volume of investor-state arbitral proceedings were initiated against Argentina. For details on cases involving Argentina in general, see, UNCTAD, Investment Policy Hub http://investmentpolicyhub.unctad.org/ .
The cases in which MFN succeeded as discussed in this chapter are as follows: Emilio Agustin Maffezini v the Kingdom of Spain (Maffezini v Spain), ICSID Case No. ARB/97/7, Decision of the Tribunal on Objections to Jurisdiction, dated 25 January; Siemens A.G. v The Argentine Republic (Siemens v Argentina), ICSID Case No. ARB/02/8, Decision on Jurisdiction, dated 3 August 2004; Hochtief AG v The Argentine Republic (Hochtief v Argentina), ICSID Case No. ARB/07/31, Decision on Jurisdiction, dated 24 October 2011; Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v The Argentine Republic (Suez v Argentina), ICSID Case No. ARB/03/19, and AWG Group Ltd. v the Argentine Republic (AWG v Argentina), In the Arbitration under the Rules of UNCITRAL, Decisions on Jurisdiction dated 3 August 2006; National Grid PLC v The Argentine Republic (National Grid v Argentina), (UNCITRAL) Decision on Jurisdiction, 20 June 2006; Impergilo S.p.A v Argentina (Impergilo v Argentina), ICSID Case No ARB/09/1, Decision on Jurisdiction, dated 21 December 2012; Camuzzi International S.A. v the Argentine Republic (Camuzzi v Argentina), ICSID Case No. ARB/3/2, Decision on Objections to Jurisdiction dated 11 May 2005; Gas Natural SDG, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/10, Decision of the Tribunal on Preliminary Questions on Jurisdiction, dated 17 June 2005; Teinver S.A., Transportes de Cercanias S.A. and Autobuses Urbanos del Sur S.A. v The Argentine Republic (Teinver v Argentina), ICSID Case No. ARB/09/1, Decision on Jurisdiction, dated 21 December 2012; Telefonica S.A. v The Argentine Republic (Telefonica v Argentina), ICSID Case No. ARB/03/20, Decision of the Tribunal on Objection to Jurisdiction, dated 25 May 2006.
The cases in which MFN failed as discussed in this chapter are as follows: Wintershall Aktiengesellschaft v the Argentine Republic (Wintershall v Argentina), ICSID Case No. ARB/04/14, Award, dated 8 December 2008; Daimler Financial Services AG v the Argentina Republic (Daimler v Argentina), ICSID Case No. ARB/05/1, Award on Jurisdiction, 22 August 2012; ICS Inspection and Control Services Limited (United Kingdom) v the Argentine Republic (ICS Inspection v Argentina), PCA Case No. 2010-9, Award on Jurisdiction, 10 February 2012; Kilic Insaat Ithalat Ihracat Sanayi Ve Ticaret Anonim Sirketi v Turkmenistan (Kilic v Turkmenistan), ICSID Case No. ARB/10/1, Award, dated 2 July 2013.
103.
This author, by an extensive research, has identified 26 publicly available investor-state arbitral decisions which have rejected or accepted application of MFN to various dimensions of arbitral jurisdiction until 2018. According to the knowledge of this researcher, these are all of the publicly available decisions on this issue. However, pending cases are not studied. This chapter only studies cases in which tribunals have rendered a decision or Award. The search was mainly based on the website of Italaw https://www.italaw.com/ and United Nations Convention on Trade and Development (UNCTAD) Investment Policy Hub http://investmentpolicyhub.unctad.org/.
The cases in which MFN failed as discussed in this chapter are as follows: Salini Costruttori S.P, A. and Italsrade S.p.A. v The Hashemite Kingdom of Jordan (Salini v Jordan), ICSID Case No. ARB/02/13, Decision on Jurisdiction, 9 November 2004; Plama Consortium Limited v Republic of Bulgaria (Plama v Bulgaria), ICSID Case No. ARB/03/24, Decision on Jurisdiction, dated 8 February 2008; Vladimir Berschader and Moise Berschader v The Russian Federation (Berschader v Russia), Arbitration Institute of the Stockholm Chamber of Commerce, Case No. 080/2004, Award dated 21 April 2006; Accession Mezzanine Capital L.P. and Danubius Kereskedohaz Vagyonkezwlo ZRT v Hungary (Accession Mezzanine v Hungary), ICSID Case No. ARB/12/3, Decision on Respondent’s Objection under Arbitration Rule 41(5), dated 16 January 2013; Austrian Airlines v The Slovak Republic (Austrian Airlines v Slovakia), UNCITRAL, Final Award, 9 October 2009; TZA Yap Shum v Republic of Peru (TZA Yap Shum v Peru), ICSID Case No. ARB/07/6, Decision on Jurisdiction and Competence, 19 June 2009 (This researcher has relied on the unofficial English translation of the Decision. The decision was originally written in Spanish. For the factual part, therefore, this researcher has relied mostly on the Decision on Annulment dated 12 February 2015 which is written in English); Telenor Mobile Communications A.S. v The Republic of Hungary (Telenor v Hungary), ICSID Case No. ARB/04/15, Award, 13 September 2006; Quasar, Orgor, GBI, Alos SICA v The Russian Federation (Quasar, Orgor, GBI, Alos v Russia), Arbitration Institute of Stockholm Chamber of Commerce, Award, 20 July 2012 (the arbitral award had follow-on proceedings). It was subjected to a review by the national court of Sweden, Sweden being the seat of arbitration); Tecnicas Medioambientales Tecmed S.A. v the United Mexican States (Tecnicas v Mexico), ICSID Case No. ARB (AF)/00/2, Award, 29 May 2003; M.C.I. Power Group L.C. and New Turbine INC v Republic of Ecuador (MCI Power Group v Ecuador), ICSID Case No. ARB/03/6, Award, 31 July 2007; Vanessa Ventures Ltd v The Bolivarian Republic of Venezuela (Vanessa v Venezuela), ICSID Case No. ARB (AF)/04/6, Award, 16 January 2013; Societe Generale v the Dominican Republic, In the Matter of an Arbitration under the UNCITRAL Arbitration Rules, LCIA Case No. UN 7927, Award on Preliminary Objections to Jurisdiction, 19 September 2008; European American Investment Bank (Euram) v Slovakia (Euram v Slovakia), PCA Case No. 2010-17, Decision on Jurisdiction, dated 22 October 2012; Ansung Housing Co Ltd v People’s Republic of China (Ansung Housing v China), ICSID Case No. ARB/14/25, Award, dated 9 March 2017; Beijing Urban Construction Group Co. Ltd v Republic of Yemen (Beijing Urban v Yemen), ICSID Case No. ARB/14/30, Decision on Jurisdiction, dated 31 May 2017; I.P. Busta & J.P. Busta v the Czech Republic (I.P. Busta v the Czech Republic), Arbitration Case v 2015/014, Arbitration Institute of the Stockholm Chamber of Commerce, Final Award, dated 10 March 2017; Sanum Investments Limited v The Government of the Lao People’s Democratic Republic (Sanum v Lao), PCA Case No. 2013-13, Award on Jurisdiction, dated 13 December 2013; Renta 4, Ahorro Emergentes, Ahorro Eurofondo, Rovime, Quasar, Orgor, GBI v The Russian Federation (Renta4 v Russia), SCC Arbitral Case, Award on Preliminary Objections, dated 20 March 2009 (the Award was accompanied by a dissenting opinion by Charles N. Brower); A11Y Ltd v Czech Republic, ICSID Case No. UNCT/15/1, Decision on Jurisdiction, dated 9 February 2017; Les Laboratoires Servier v Republic of Poland (Servier v Poland), UNCITRAL, Award, dated 14 February 2012; Yaung Chi OO Trading Pte Ltd v Government of the Union of Myanmar (Yaung Chi v Myanmar), ASEAN I.D. Case No. ARB/01/1, Award, dated 31 March 2003, (2003) 42 ILM 540; ST-AD GmbH (Germany) v The Republic of Bulgaria (ST-AD GmbH v Bulgaria), PCA, Award on Jurisdiction, dated 18 July 2013.
The cases in which MFN succeeded as discussed in this chapter are as follows: Garanti Koza LLP v Turkmenistan (Garanti Koza v Turkmenistan), ICSID Case No. ARB/11/20, Decision on the Objection to Jurisdiction for Lack of Consent, 3 July 2013, Majority Decision (the award was accompanied by the Dissenting Opinion by Arbitrator Laurence Boisson de Chazournes, dated 3 July 2013); RosInvestCo UK Ltd v The Russian Federation (RosInvest v Russia), Arbitration Institute of the Stockholm Chamber of Commerce (SCC), Case No. Arbitration V079/2005, Award on Jurisdiction, 1 October 2007; Venezuela US, S.R.L Barbados v the Bolivarian Republic of Venezuela (Venezuela US Barbados v Venezuela), PCA Case No. 2013-34, Interim Award on Jurisdiction (on the Respondent’s Objection to Jurisdiction Ratione Voluntatis), 26 July 2016.
104.
The case is, Maffezini v Spain, above n 51.

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Faculty of Law, Monash University, Clayton, VIC, Australia
Tanjina Sharmin

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Sharmin, T. (2020). Introduction. In: Application of Most-Favoured-Nation Clauses by Investor-State Arbitral Tribunals. International Law and the Global South. Springer, Singapore. https://doi.org/10.1007/978-981-15-3730-1_1

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