Importing Consent to ICSID Arbitration? A Critical Appraisal of Garanti Koza v. Turkmenistan
5(2) Investment Treaty News (2014), pp. 12-15
Grotius Working Paper No. 2014/025-PIL
8 Pages Posted: 10 Jun 2014
Date Written: June 10, 2014
The application of the Most-favoured-nation (MFN) clause to investor-State dispute settlement provisions remains both an unsettled question in investment treaty arbitration, and a controversial one. Legally, this is in part the consequence of the fact that bilateral investment treaties (BITs) invariably use different language making it necessary to interpret the applicable treaty on a case-by case basis. A difficulty also results from the fact that the MFN clause touches upon a fundamental principle of international dispute settlement, namely the consent of States, and the diverging views of arbitral tribunals on the essential features of expressing consent to arbitration. This brief article provides a critical examination of the Tribunal’s decision in Garanti Koza LLP v. Turkmenistan, where the majority took a particularly expansive reading of the MFN clause in the United Kingdom-Turkmenistan BIT.
Keywords: investment law, arbitration, consent, MFN
Suggested Citation: Suggested Citation