The Investment Treaty Arbitration Review: Most Favoured Nation Treatment
Most favoured nation (MFN) treatment is a core element in bilateral investment treaties (BITs) and other international investment agreements.2 Like many other standards of investment protection offered under BITs, MFN treatment is designed to avoid discrimination.3 The purpose of an MFN clause is to provide a mechanism to ensure that each party to a treaty receives at least as favourable terms as the other party offers to any third party. 4
The increase of investment disputes settled by international arbitration has had a strong impact on the substantive standards of investment protection provided by investment agreements.5 Before 2000, judicial and arbitral arguments regarding MFN clauses largely focused on the application of its substantive protection arising from the provisions of an investment treaty.6 Since the Maffezini v. Spain7 decision before the International Centre for Settlement of Investment Disputes (ICSID) in January 2000, there has been a large shift in the discussion in international investment dispute practice from substantive protections to the possibility of importing more favourable procedural provisions from other third-party BITs, such as international dispute resolution mechanism.8 While a number of cases have looked into the scope and interpretation of MFN clauses regarding dispute resolution provisions, the decisions among the arbitral tribunals have been inconsistent.9
While the MFN clause is still a cornerstone of modern commercial treaties,10 it has now become a controversial issue in investment treaties and the subject of differing and unexpected interpretations by arbitral tribunals.11 Conflicting arbitral awards regarding the interpretation of MFN clauses have created difficulties in accurately assessing commercial and litigation risks for contracting parties.12
This chapter will review the background of MFN treatment, examine arbitral cases with differing decisions on the application of MFN clauses to dispute settlement and finally introduce some recent recommendations on drafting MFN clauses suggested by the United Nations Conference on Trade and Development (UNCTAD) that are likely to shape MFN provisions going forward.
MFN treatment has been a central pillar of commercial treaties for centuries.13 MFN clauses are first found in international trade agreements going back to at least the eleventh century.14 The earliest structure of an MFN clause resembling the current form was found in the fifteenth century,15 with the use of MFN clauses in investment treaties becoming a common practice in the seventeenth century.16 The MFN clause was originally used mainly with the aim of preventing discrimination in international trade. It was then extended to the area of international investments, first appearing in friendship, commerce and navigation treaties, and then BITs, with an aim to promote and protect international investments.17
MFN treatment is intended to establish a 'level playing field' and ensure 'equality of competitive opportunities' among foreign investors from different countries.18 The International Court of Justice (ICJ) also states that the purpose of the MFN clause in BITs is 'to establish and to maintain at all times fundamental equality without discrimination among all of the countries concerned'.19
While there is no universal, internationally recognised definition and form of an MFN clause, as the MFN clause has become a standard of international investment treaties, the International Law Commission (ILC) in 1964 started a multi-year project to compose a set of draft articles on MFN clauses, which was finally published in 1978 as the Draft Articles on Most-Favoured-Nation Clauses (ILC Draft Articles).20 The ILC Draft Articles provide a general analysis of MFN clauses and insight into the ejusdem generis principle (discussed below), which has been used in the interpretation of a number of judicial and arbitral cases.21 Although the ILC Draft Articles is not a binding agreement, it does explore the definition and provide guidance and rules governing the operation of MFN clauses.22
Article 4 of the ILC Draft Articles on MFN clauses states that: '[a] most-favoured-nation clause is a treaty provision whereby a State undertakes an obligation towards another State to accord most-favoured-nation treatment in agreed sphere of relations'.23
Article 5 of the ILC Draft Articles defines MFN treatment as follows:
Most-favoured-nation treatment is treatment accorded by the granting State to the beneficiary State, or to persons or things in a determined relationship with that State, not less favourable than treatment extended by the granting state to a third State or to persons or things in the same relationship with that third State.24
According to Article 9 of the ILC Draft Articles, the beneficiary state of MFN treatment can only request for more favourable treatment accorded to a third state when it falls within the limits of the subject matter of the MFN clause. Such article reinforces the ejusdem generis principle (meaning 'of the same kind'), which is a generally recognised principle of international law.27
In the context of the application of MFN clause, many arbitral tribunals have invoked ejusdem generis to limit applicability to issues belonging to the same subject matter or the same category of subjects to which the treaty or clause relates. For example, in Maffezini, the tribunal explained that 'if a third-party treaty contains provisions for the settlement of disputes that are more favourable to the protection of the investor's rights and interests than those in the basic treaty, such provisions may be extended to the beneficiary of the most favoured nation clause as they are fully compatible with the ejusdem generis principle'.28 This principle restricts the application of an MFN clause to the subject matter regulated by the treaty in question.
To better understand the scope of application of MFN clauses to be discussed in the following section, it is important to consider the legal nature and qualifications of MFN treatment, which are summarised by UNCTAD as follows:
- It is a treaty-based obligation that must be contained in a specific treaty;
- It is a relative standard, which means that it implies a comparative test;
- It is governed by the ejusdem generis principle;
- It requires a legitimate basis of comparison, i.e. similar objective situations;
- It relates to discrimination on grounds of nationality;
- It requires a finding of less favourable treatment;
- It operates without prejudice to the freedom of contract;
- It works differently from the MFN clause in the trade context; and
- It has to be interpreted in the light of general principles of treaty interpretation.29
III APPLICATION OF AN MFN CLAUSE TO DISPUTE SETTLEMENT PROVISIONS
In the past two decades, one of the most controversial issues regarding MFN treatment before arbitral tribunals has been whether a party can import procedural rules from a third-party treaty,30 and in particular, whether the MFN clause can allow for the incorporation of dispute settlement provisions contained in a third-party treaty when the wording of the MFN clause does not explicitly provide for such terms.31
i Maffezini v. Spain
Maffezini was the first case in which a tribunal held that an investor could import favourable dispute settlement provisions from a third-party treaty through an MFN clause. This ICSID arbitration case arose from a dispute between an Argentine investor who had invested in an enterprise in Spain. Spain raised an objection to the jurisdiction of the arbitral tribunal on the ground that the claimant failed to fulfil a condition precedent provided in the Argentina–Spain BIT that required the claimant to first bring the dispute to Spanish courts for 18 months before resorting to international arbitration.32
The claimant failed to meet the condition precedent and averred that the arbitral tribunal had jurisdiction because of the MFN clause contained in the Argentina–Spain BIT provided that: 'In all matters subject to this agreement, this treatment shall not be less favourable than that extended by each Party to the investments made in its territory by investors of a third country'.33
The claimant pointed out that the Chile–Spain BIT contained no condition precedent equivalent to that contained in the Argentina–Spain BIT. The claimant therefore argued that chilean investors were treated more favourably than Argentine investors in Spain and therefore it relied on the more favrouable dispute resolution provisions of the Chile–Spain BIT to forego Spanish courts. The tribunal upheld the claimant's position.
The tribunal considered that '[t]oday dispute settlement arrangements are inextricably related to the protection of foreign investors, as they are also related to the protection of rights of traders under treaties of commerce'.34 The tribunal also welcomed the fact that the 'application of the MFN clause to dispute settlement arrangements in the context of investment treaties might result in the harmonisation and enlargement of the scope of such arrangements'.35
The subject matter of the MFN clause at issue in Maffezini was particularly broad and sufficiently vague, which explicitly referred to 'all matters subject to this agreement'.36 Being aware of the revolutionary nature of its decision, the tribunal tried to set limits to the application of MFN clauses:37
As a matter of principle, the beneficiary of the clause should not be able to override public policy considerations that the contracting parties might have envisaged as fundamental conditions for their acceptance of the agreement in question, particularly if the beneficiary is a private investor . . .
. . . in any event, that a distinction has to be made between the legitimate extension of rights and benefits by means of the operation of the clause, on the one hand, and disruptive treaty-shopping that would play havoc with the policy objectives of underlying specific treaty provisions, on the other hand.38
In addition, the tribunal also emphasised the importance of identifying the contracting parties' intention and assessing the past practice of states regarding the MFN clauses in BITs with other countries.39
ii Plama v. Bulgaria
The Plama case stands in contrast to the Maffezini decision. This ICSID arbitration case arose from a dispute between a Cypriot investor and the Republic of Bulgaria, concerning damages caused to a company owned by the investor by the alleged actions of the Bulgarian government.40
The claimant insisted that the arbitral tribunal had jurisdiction by invoking the MFN clause of the Cyprus–Bulgaria BIT of 1987, and Part V of the Energy Charter Treaty. The Cyprus–Bulgaria BIT was limited to ICSID arbitration of disputes concerning setting the amount of compensation after Bulgarian courts had ruled on the merits of the underlying dispute. By relying on the MFN clause in the Cyprus–Bulgaria BIT, which provided that '[e]ach Contracting Party shall apply to the investments in its territory by investors of the other Contracting Party a treatment which is not less favourable than that accorded to investments by investors of third states', the claimant sought to overcome such limitations, by importing the dispute resolution provisions of the Bulgaria–Finland BIT, which provided for wider jurisdiction.41
In Plama, the arbitral tribunal found that the 'basket of treatment' and 'self-adaptation' of the MFN treatment would lead to 'the option to pick and choose provisions from the various BITs'.42 The tribunal considered that, in principle: 'an MFN provision in a basic treaty does not incorporate by reference dispute settlement provisions in whole or in part set forth in another treaty, unless the MFN provision in the basic treaty leaves no doubt that the Contracting Parties intended to incorporate them'.43
The tribunal further explained that: '[d]ispute resolution provisions in a specific treaty have been negotiated with a view to resolving disputes under that treaty. Contracting states cannot be presumed to have agreed that those provisions can be enlarged by incorporating dispute resolution provisions from other treaties negotiated in an entirely different context'.44
However, the tribunal in Plama agreed with the decision of Maffezini to the extent that there is a need to make a distinction between 'a legitimate extension of rights and benefits through the operation of MFN clause' and 'disruptive treaty-shopping that would be disastrous for policy objectives reflected in specific treaty provisions'.45
Further, the Plama tribunal specifically distinguished its ruling from Maffezini, highlighting that Maffezini had unique and unprecedented circumstances as it 'concerned a curious requirement that during the first 18 months the dispute be tried in the local courts' and the wording of its MFN clause was rather broad and vague. Therefore, the Plama tribunal stated that Maffezini should not be treated as a statement of general principle providing guidance to arbitral tribunals in future cases where such special circumstances are not present.46
Despite numerous criticisms of the Maffezini award and the fears that it raised, several tribunals have followed the same direction to import procedural provisions of more favourable BITs, including in Siemens v. Argentine,47 Gaz Natural v. Argentina,48 National Grid v. Argentina,49 AWG v. Argentina,50 Hochtief AG v. Argentina,51 Suez v. Argentina,52 Impregilo v. Argentina53 and Garanti Koza LLP v. Turkmenistan54. Notably, several cases in which the importation of dispute resolution provisions was upheld involve Argentina, whose BITs often require investors to bring disputes before national courts for 18 months before international arbitration, which has been considered – at least by the Plama tribunal – practically nonsensical.55
Other arbitral tribunals, such as in Salini v. Jordan,56 Vladimir Berschader v. Russian Federation,57 Wintershall v. Argentina,58 ICS Inspection v. Argentina,59 Daimler v. Argentina,60 Kilic v. Turkmenistan61 and Professor Christian Doutremepuich v. Mauritius,62 have rejected the course set out by Maffezini, and following Plama, decided that an MFN clause could not be used to import procedural rules, unless it is clearly and explicitly indicated in the agreement.
Given that arbitral tribunals seem to be split on this issue, it can be difficult to determine a current practice in international law. For example, Siemens and Wintershall share similar fact patterns and both were against the Argentine government, but the arbitral tribunals reached contradicting decisions. The Wintershall tribunal said that an MFN clause did not apply to dispute resolution provisions 'unless of course the MFN clause in the basic treaty clearly and unambiguously indicates that it should be so interpreted',63 while the Siemens tribunal based its reasoning on the vagueness of the MFN clause in question to conclude that procedural rules can be included unless they are expressly excluded.64
In the above cases, to argue in favour of importing other dispute resolution provisions, claimants have mostly focused on the relationship between the availability of arbitration and investor protections as a whole, the overall objectives of investment protection agreements, context of the treaty negotiations, and the language and interpretation of the MFN clause. On the other hand, state respondents have argued that there is a need for clear and unambiguous consent to import procedural elements and that there is no evidence of 'less favourable' treatment between the two treaties in question. Furthermore, states frequently highlight the need to limit the extent of MFN clauses to avoid the broader risk of treaty shopping.65
Although no consensus has been reached on this issue, the tribunals in Maffezini and Plama, as well as other cases, seem to agree that the application of MFN clause must not lead to treaty shopping, which 'undermine improved formulations of treaty provisions'.66 While arbitral tribunals agree about the need to strike a balance between protecting foreign investors and the prevention of treaty shopping, there is still a significant amount of subjectivity on how to balance these contrasting points.
Another fundamental basis agreed upon by all tribunals is that investors will only be able to use MFN clauses as a means incorporating more favourable dispute resolution provisions of other treaties where the circumstances indicate that the contracting states to the primary treaty clearly intended this to be possible. As pointed out in Plama, this will most often be the case where such an intention is clearly and unambiguously expressed by the wording of the MFN clause concerned. However, as most MFN clauses do not contain express language regarding the inclusion or exclusion of dispute resolution provisions, such an intention may also be established by interpretation with reference to those guidelines provided for interpretation of international treaties.67
There is no universal tool for interpretation, but guidelines do exist. One of the basic principles of interpretation when interpreting an MFC clause is the ejusdem generis principle mentioned above. Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 (VCLT) also provide for general rules of interpretation and other means that can be used for treaty clause interpretation.68 The ultimate goal of utilising these basic principles of interpretation is to identify the intention of the contracting parties.69
IV FUTURE OF MFN CLAUSES
As shown above, many MFN clauses are drafted broadly without a clear indication of their intended scopes, which can lead to conflicting decisions from courts and arbitral tribunals on similar issues. Therefore, recently there has been more significant focus on expressing the parties' intention more clearly in the MFN clause, with states needing to be 'careful that the desired effects of newly crafted treaty provisions are not obviated by the application of a broadly worded MFN clause'.70 Further, given the inconclusive decisions of the tribunals in the past two decades, UNCTAD has recently recommended some options for future treaty drafting to address these challenges:71
- to specify in the treaty that the MFN clause does not allow for the importation of substantive or investor-state dispute settlement elements contained in older treaties;
- to specify in the treaty that MFN treatment does not apply to ISDS provisions found in other existing or future third-party treaties;
- to specify in the treaty that the MFN clause does not apply to substantive obligations undertaken in other existing or future third-party treaties;
- to specify in the treaty that certain sectors or industries or certain policy measures are excluded from the MFN obligation through a general exclusion (applicable to both parties) or through country-specific reservations;
- to specify in the treaty that the MFN obligation requires comparison of investors/investments that are 'in like circumstances', while preferably setting out criteria for determining whether investors/investments are in 'like circumstances';72 and
- simply not to include MFN clause in the treaty;73 such approach preserves a maximum degree of flexibility.
It will be important for those wishing to apply MFN clauses in international arbitration cases to monitor how newly worded clauses may limit their applicability.
MFN treatment has been a basic standard of international economic relations for a long time, providing equal opportunities between nations. Although the application of MFN treatment to international investment is more recent than to international trade, it is broadly recognised as one of the most important provisions of substantive protection in investment treaties.74
The large number of treaties with varying substantive and procedural standards has created a particular challenge to the question of the scope of MFN clauses.75 Since Maffezini in 2000, even procedural provisions of third-party BITs can be invoked to settle disputes arising out of a treaty, causing uncertainty and instability for investors and states.76
The application of broadly-worded MFN clauses to dispute settlement mechanisms has given rise to various problems as arbitral tribunals attempt to ascertain the contracting parties' intention while simultaneously striking a balance between the protection of investors and potential treaty shopping.
There seems to be some concern in the international community that the further extension of the scope of MFN clauses could be endless if states and tribunals do not set limits in a uniform and definitive manner.77 While UNCTAD has set out some recommendations which seek to advise states how to limit overly-extensive MFN clauses,78 it remains to be seen how these may affect future treaties and arbitral decisions.
1 Arthur Ma is a partner at DaHui Lawyers.
2 Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law, Oxford University Press, 2008, p. 186.
3 'Most Favoured Nation Treatment Application in International Investment Arbitration: A Study on Conflicting Precedence in International Dispute Settlement Procedure', University of Oslo, 2011, p. 3. Available at: www.duo.uio.no/bitstream/handle/10852/22714/Master_thesis.pdf?sequence=1.
5 Christoph Schreuer, 'Introduction: Interrelationship of Standards', in Standards of Investment Protection, ed. August Reinisch, Oxford University Press, 2007, p. 1.
6 Yas Banifatemi, 'The Emerging Jurisprudence on the Most-Favoured-Nation Treatment in Investment Arbitration', in Investment Treaty Law: Current Issues III, ed. A. Bjorklund, I. Laird and S. Ripinsky, BIICL, 2009, p. 242.
7 Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Decision on Jurisdiction, 25 January 2000. Available at www.italaw.com/sites/default/files/case-documents/ita0479.pdf.
8 Suzy H. Nikièma, 'The Most-Favoured-Nation Clause in Investment Treaties', IISD Best Practice Series 21, February 2017, p. 1.
9 'Most Favoured Nation Treatment Application in International Investment Arbitration: A Study on Conflicting Precedence in International Dispute Settlement Procedure', p. 4.
10 Stanley K. Hornbeck, 'The Most-Favoured-Nation Clause', 3 Am. J. Int'l L. 396, 1909, p. 395.
11 Nikièma, p. 1.
12 United Nations Conference on Trade and Development (UNCTAD), 'Research Note: Recent Developments in International Investment Agreements', UNCTAD/WEB/ITE/IIT/2005/1, 30 Aug 2005, p. 15.
13 Marie-France House & Fabrizio Pagani, 'Most-Favoured-Nation Treatment in International Investment Law', OECD Working Paper No. 2004/2, September 2004, pp. 3–5.
14 P Verloren van Themaat, The Changing Structure of International Economic Law, The Hague: Marinus Nijhoff, 1981, pp. 19–21; G Schwarzenberger, 'The Principle and Standards of International Economic Law', 1966),117 RDCADI 1, p. 19.
15 Endre Ustor, 'Most-Favoured-Nation Clause: First report on the most-favoured-nation clause', Document A/CN.4/213, 1969:2 YBILC 157, 1969, p. 160.
16 Jacob Viner, The Most-Favoured-Nation Clause in American Commercial Treaties, 32 J. Pol. Econ. 101, 1924, p. 101.
17 Yannick Radi, The Application of the Most-Favoured-Nation Clause to the Dispute Settlement Provisions of Bilateral Investment Treaties: Domesticating the “Trojan Horse”, EJIL, 2007, Vol. 18 No. 4, 757–774, p. 758.
18 United Nations Conference on Trade and Development (UNCTAD), 'Most-favoured nation treatment', UNCTAD/DIAE/IA/2010/1 (23 Jan 2011), pp. 13–14.
19 Case Concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America) (1952) ICJ Rep 176, p. 192.
20 International Law Commission, Draft Articles on Most-Favoured-Nation Clauses with Commentaries, text adopted by the International Law Commission at its 30th session (1978), A/CN.4/SER.A/1978/Add.1(Part 2). Available at http://legal.un.org/ilc/texts/instruments/english/commentaries/1_3_1978.pdf.
21 OECD (2004), Most-Favoured-Nation Treatment in International Investment Law, OECD Working Papers on International Investment, 2004/02, OECD Publishing. Available at http://dx.doi.org/10.1787/518757021651.
22 Radi, p. 758.
23 Article 4 of the ILC Draft Articles.
24 Article 5 of the ILC Draft Articles.
25 Article 8 of the ILC Draft Articles states that '1. The right of the beneficiary State to most-favoured-nation treatment arises only from the most-favoured-nation clause referred to in article 4, or from the clause on most-favoured-nation treatment referred to in article 6, in force between the granting State and the beneficiary State. 2. The most-favoured-nation treatement to which the beneficiary State, for itself or for the benefit of persons or things in a determined relationship with it, is entitled under a clause referred to in paragraph 1, is determined by the treatment extended by the granting State to a third State or to persons or things in the same relationship with that third State.'
26 Article 9 of the ILC Draft Articles states that '1. Under a most-favoured-nation clause the beneficiary State acquires, for itself or for the benefit of persons or things in a determined relationship with it, only those rights which fall within the limits of the subject-matter of the clause. 2. The beneficiary State acquires the rights under paragraph 1 only in respect of persons or things which are specified in the clause or implied from its subject-matter.'
27 Anglo-Iranian Oil Co. Case (United Kingdom v. Iran) (Preliminary objection)  ICJ Rep 93, p. 110.
28 Maffezini, para. 55.
29 UNCTAD, Most-favoured nation treatment, pp. 21–33.
30 Basic treaty is the treaty with MFN clause, which governs the rights of the beneficiary under the MFN clause.
31 Radi, p. 760.
32 PR Thulasidhass, 'Most-Favoured-Nation Treatment in International Investment Law: Ascertaining the Limits through Interpretative Principles', Amsterdam Law Forum, Vol. 7:1, p. 9.
33 Maffezini, para. 38.
34 id., para. 54.
35 id., para. 62.
36 Stephen Fietta, 'Most Favoured Nation Treatment and Dispute Resolution under Bilateral Investment Treaties: A Turning Point?', Int.A.L.R., 2005, p. 133.
37 Nikièma, p. 14.
38 Maffezini, paras 62–63.
39 id., paras 49, 57–58; See also 'Most Favoured Nation Treatment Application in International Investment Arbitration: A Study on Conflicting Precedence in International Dispute Settlement Procedure', p. 31.
40 Plama, para. 21.
41 'Most Favoured Nation Treatment Application in International Investment Arbitration: A Study on Conflicting Precedence in International Dispute Settlement Procedure', p. 43.
42 Plama, para. 219.
43 id., para. 223.
44 id., para. 207
45 id., paras 222–223.
46 id., para. 224.
47 Siemens A.G. v. The Argentine Republic, ICSID Case No. ARB/02/8, Decision on Jurisdiction, 3 August 2004. Available at www.italaw.com/sites/default/files/case-documents/ita0788.pdf.
48 Gas Natural SDG, S.A. v. The Argentine Republic, ICSID, ARB/03/10, Decision on preliminary questions on jurisdiction, 27 June 2005. Available at www.italaw.com/sites/default/files/case-documents/ita0354.pdf.
49 National Grid PLC v. The Argentine Republic, UNCITRAL, Decision on Jurisdiction, 20 June 2006. Available at www.italaw.com/sites/default/files/case-documents/ita0553.pdf.
50 AWG Group Ltd v. The Argentine Republic, UNCITRAL, Decision on Jurisdiction, 3 August 2006. Available at www.italaw.com/sites/default/files/case-documents/ita0049.pdf.
51 Hochtief AG v. The Argentine Republic, ICSID Case No. ARB/07/31, Decision on Jurisdiction, 24 October 2011. Available at www.italaw.com/sites/default/files/case-documents/ita0405.pdf.
52 Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua, S.A. v. The Argentine Republic, ICSID, ARB/03/17, Decision on Jurisdiction, 16 May 2006. Available at www.italaw.com/sites/default/files/case-documents/ita0807.pdf.
53 Impregilo S.p.A. v. Argentine Republic, ICSID Case No. ARB/07/17, Concurring and Dissenting Opinion of Prof. B Stern, 21 June 2011. Available at www.italaw.com/sites/default/files/case-documents/ita0420.pdf.
54 Garanti Koza LLP v. Turkmenistan, ICSID, ARB/11/20, Decision on the Objection to Jurisdiction for Lack of Consent, 3 July 2013. Available at www.italaw.com/sites/default/files/case-documents/italaw8189_12.pdf.
55 Plama, para. 224.
56 Salini Costruttori S.p.A. and Italstrade S.p.A. v. The Hashemite Kingdom of Jordan, ICSID Case No. ARB/02/13, Decision on Jurisdiction, 29 November 2004. Available at www.italaw.com/sites/default/files/case-documents/ita0735.pdf.
57 Vladimir Berschader and Moïse Berschader v. The Russian Federation, SCC Case No. 080/2004, award of 21 April 2006. Available at www.italaw.com/sites/default/files/case-documents/ita0079_0.pdf.
58 Wintershall Aktiengesellschaft v. The Argentine Republic, DIRDI ARB/04/14, award of 8 December 2008. Available at www.italaw.com/sites/default/files/case-documents/ita0907.pdf.
59 ICS Inspection and Control Services Limited v. The Argentine Republic, UNCITRAL, CPA No. 2010-9, Award on Jurisdiction, 10 February 2012. Available at www.italaw.com/sites/default/files/case-documents/ita0416.pdf.
60 Daimler Financial Services AG v. The Argentine Republic, ICSID, ARB/05/1, award of 22 August 2012. Available at www.italaw.com/sites/default/files/case-documents/ita1082.pdf.
61 Kiliç İnşaat İthalat İhracat Sanayi Ve Ticaret Anonim Şirketi v. Turkmenistan, ICSID Case No. ARB/10/1, award of 2 July 2013. Available at www.italaw.com/sites/default/files/case-documents/italaw1515_0.pdf.
62 Professor Christian Doutremepuich and Antoine Doutremepuich v. Republic of Mauritius, PCA Case No. 2018-37, Award on Jurisdiction, 23 August 2019. Available at www.italaw.com/sites/default/files/case-documents/italaw10817.pdf.
63 Wintershall, para. 167.
64 Simens, para.106.
65 United Nations Conference on Trade and Development, 'Most-favoured nation treatment', pp. 21–33.
66 United Nations Conference on Trade and Development, 'World Investment Report 2015: Reforming International Investment Governance', UNCTAD/WIR/2015 (2015), p. 131.
67 Fietta, p. 138.
68 Articles 31 and 32 of VCLT. Available at http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.
69 Fietta, p. 132.
70 Simens, para. 136.
71 UNCTAD, 'World Investment Report 2015: Reforming International Investment Governance', pp. 136–137.
72 For example, Azerbaijan–Croatia BIT (2007).
73 For example, the Free Trade Agreement (FTA) between the EU and Singapore (2014), the FTA between India and Malaysia (2011), the ASEAN-Australia-New Zealand FTA (2009), the Japan-Singapore FTA (2002) and the SADC Model BIT (2012).
74 Marie-France House & Fabrizio Pagani, p. 16.
75 'Most Favoured Nation Treatment Application in International Investment Arbitration: A Study on Conflicting Precedence in International Dispute Settlement Procedure', p. 73.
76 Thulasidhass, p. 24.
77 Nikièma, p. 25.
78 UNCTAD, 'Most-favoured nation treatment', p. 84.