When is a Forum 'More Favourable'? The Use of MFN Clauses to Found an Investment Arbitration Tribunal’s Jurisdiction

Abstract

The goal of this article is to provide a baseline analysis of the operation of MFN clauses in the international investment law context, from which more refined analyses can be made of the operation of a particular clause in a particular context. The restriction of the present analysis to this baseline approach is necessary because although MFN clauses are a common feature of international investment agreements, the language in which they are expressed can differ significantly, and any such differences will, of course, impact upon their manner of operation. However, while attention must ultimately be paid to the specific language adopted in each individual MFN clause, this does not entail that nothing can be said regarding the operation of such clauses generally. Rather, it simply means that the general analysis offered here can always be varied by States through the language they choose for the MFN clause they adopt. That is, the analysis offered here provides a first step in the analysis of any individual MFN clause, it does not provide the final word.

Keywords: MFN clauses, IEL, international investment agreements

JEL Classification: F00, F10, F23, F48, K1, K2, K33