The Most Favoured Nation Clause in BITs as a Basis for Jurisdiction in Foreign Investor--Host State Arbitration
| Autor: | Mara Valenti |
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| Rok vydání: | 2008 |
| Předmět: | |
| Zdroj: | Arbitration International. 24:447-466 |
| ISSN: | 1875-8398 0957-0411 |
| DOI: | 10.1093/arbitration/24.3.447 |
| Popis: | A trend has recently emerged before international arbitral tribunals established to settle disputes between foreign investors and the host countries. We refer to the practice of claimants, that is foreign investors, to invoke the Most Favoured Nation (MEN) clause contained in the Bilateral Investment Treaty (BIT) at issue in order to overcome the respondent state’s objection to jurisdiction based on the non-compliance by the claimants with the BIT provisions concerning dispute settlement procedures. Since the first case of the series under analysis, the arguments of the claimants concerning the application of the MFN clause to jurisdictional issues have been refined. The respondent states, also, have better developed their defence on the point. Although it could still be the object of assessment by future arbitral tribunals, it seems appropriate, at this stage of elaboration by the jurisprudence, to see how the question of the extension to procedural matters of the MFN treatment provided for in an investment treaty has been dealt with. The study of the case law available so far supports the opinion that the question cannot be decided once and for all according to general theories but has to be addressed on a case-by-case basis through a proper interpretation of the relevant MFN clause. |
| Databáze: | OpenAIRE |
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