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

Posted: 9 Sep 2010 Last revised: 22 Mar 2011

See all articles by Tony Cole

Tony Cole

University of Leicester Law School

Madhu Agrawal

affiliation not provided to SSRN

Date Written: September 9, 2010

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

Suggested Citation

Cole, Tony and Agrawal, Madhu, When is a Forum 'More Favourable'? The Use of MFN Clauses to Found an Investment Arbitration Tribunal’s Jurisdiction (September 9, 2010). Warwick School of Law Research Paper No. 2010/19, Available at SSRN: https://ssrn.com/abstract=1674378

Tony Cole (Contact Author)

University of Leicester Law School ( email )

University Road
Leicester LE1 7RH, LE1 7RH
United Kingdom

Madhu Agrawal

affiliation not provided to SSRN ( email )

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