MJIEL Vol 15 Issue 1 2018 - Article 4

Application of MFN to the Substantive Standards:
Why Should We Re-Investigate the Uncontested?
Tanjina Sharmin
 
ABSTRACT: Most-Favoured-Nation (MFN) treatment has been regularly included within different generations of International Investment Agreements (IIAs) to multilateralise the protections. However, scholars and practitioners have not been visibly interested in the operation of the treatment until the arbitral award in Maffezini v. Spain in the year 2000. In Maffezini, MFN was applied to a dispute settlement provision for the first time. After that, some arbitral decisions have allowed such application of MFN, while others rejected the same. This split has created various controversies about the scope and interpretation of MFN. On the other hand, the application of MFN to substantive standards is largely considered to be uncontroversial and uncontested in principle. Nevertheless, in practice, most claims for the application of MFN to substantive standards remained undecided or unsuccessful. In this context, the present Article re-investigates some cases in which the application of MFN to substantive standards became successful and unsuccessful. The Article deduces some conclusions based on the case studies which may clarify the scope of MFN within IIAs in general. Furthermore, it comes out with some lessons for interpreting MFN in the context of its application to procedural standards.

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