MFN-Based Jurisdiction in Investor-State Arbitration: Is There Any Hope for a Consistent Approach?

Abstract

MFN clauses are a hotly contested basis for jurisdiction in investment arbitration. This paper surveys the divergent approaches taken by arbitral tribunals to-date, revealing the major types of MFN clauses interpreted, the key types of MFN questions confronted, and the major reasons cited for either upholding or denying MFN-based jurisdiction. It analyzes trends emerging from the awards and key differences between the interpretive approaches taken by various investor-state tribunals. The presentation posits an explanation for the current disparate state of the law concerning MFN-based jurisdiction and explores the feasibility of finding a more consistent and predictable approach, one which respects both the dictates of the Vienna Convention and the pragmatic concerns of investors and host states.

Presented at the SIEL 2010 Conference in Barcelona.

Keywords: Most-favored nation treatment, MFN, investment arbitration, investor-state arbitration, jurisdiction, Maffezini, Plama, interpretation of investment treaties, bilateral investment treaties, consent to arbitration.

JEL Classification: F10, F12, F20, F21, F23, F29