ABSTRACT
This paper revisits the debated issue of the applicability of Most Favoured Nation (MFN) clauses to dispute settlement treaty provisions under the ICSID Convention. The paper firstly introduces the debate, and discusses the contrasting views taken by tribunals, with particular emphasis on Maffezini and Plama. Secondly, the paper argues that creation of an artificial distinction between jurisdiction and admissibility in treaty arbitrations is a non-starter and cannot be supported. Thirdly, the paper criticizes the view taken in Maffezini and other like cases as (a) it creates an unfounded assumption that MFN clauses, shorn of its traditional usage, ought to apply to jurisdictional clauses unless expressly excluded by parties, (b) is based on an incorrect construction of the ICJ jurisprudence on MFN clauses, and (c) contradicts the position that substantive rights need not be accompanied by enforcement rights under international law. The paper argues that MFN clauses cannot be used by investors to bestow jurisdiction in cases where none exists under the basic treaty (i.e. the treaty that contains the MFN clause being relied upon). In fact, satisfaction of conditions stipulated in the basic treaty to establish jurisdiction of the tribunal is a prerequisite to invoke the MFN clause itself.
Keywords: MFN; ISDS; ICSID; BIT; Jurisdiction; Interpretation.
I. INTRODUCING THE DEBATE: ARE MAFFEZINI AND PLAMA REALLY IN CONFLICT?
Most Favoured Nation (‘MFN’) clauses, simply put, impose an obligation on the host state to accord, investors (and their investments) of the beneficiary state, treatment that is ‘not less favourable’ than the treatment accorded by the host state to the investors (and their investments) of a third state.[1] The ejusdem generis principle limits the application of MFN clauses to treatment of the same category to which the clause relates.[2]
The purpose of MFN clauses has been recognised to establish and maintain ‘at all times fundamental equality without discrimination’ in like circumstances among investors of all states.[3] The scope of MFN clauses may differ depending upon the text of such clauses. While MFN clauses may give rise to several discussion points, this paper is limited to discussing the controversial and long-standing debate concerning the application of MFN clauses to dispute settlement clauses under the ICSID Convention. The lack of the rule of stare decisis (binding precedents) in international law and investor state dispute settlement (‘ISDS’) has meant that this debate has remained and continues to remain relevant for more than two decades.
The debate can be traced back to the contrasting decisions in Emilio Agustín Maffezini v Kingdom of Spain (‘Maffezini’),[4] and Plama Consortium Limited v. Republic of Bulgaria (‘Plama’).[5]In Maffezini, the investor was allowed to bypass the requirement under the Spain-Argentina BIT to litigate domestically for 18 months prior to initiating arbitration by invoking the application of the Spain-Chile BIT through the MFN clause in the basic treaty. The tribunal inter alia relied upon the broadly worded MFN provision under the basic BIT (‘all matters subject to this agreement’),[6] and reasoned that there is an inextricable link between substantive rights and dispute settlement, which are both essential aspects of protection and treatment accorded to investors. The tribunal relied on the decision of the Commission of Arbitration in the Ambatielos case (‘Ambatielos’),[7] rather erroneously as will be argued below, to suggest that dispute settlement provisions fall within the scope of MFN clauses, which parties have envisaged as fundamental conditions for their acceptance to the agreement in question. An indicative list of such exceptions included conditions such as exhaustion of local remedies, fork-in-the-road clauses or where specific institution or rules have been chosen. These exceptions appear to have arisen out of the guilt accompanying the unprecedent nature of its action rather than being based on any sound principle.
Tribunals in cases such as Siemens v Argentina,[8] Gas Natural v Argentina,[9] Telefonica v Argentina,[10] Impregilo v Argentina (‘Impregilo’),[11] RosInvest v Russia (‘RosInvest’),[12] Garanti Koza v Turkmenistan (‘Garanti Koza’),[13] Natural Grid v Argentina (‘Natural Grid’),[14] Hochtief v Argentina (‘Hochtief’),[15] and Teinver v Argentina (‘Teinver’),[16] have relied upon Maffezini to allow application of MFN clauses to dispute settlement provisions, while deviating from its exceptions in certain cases.[17] In Maffezini and like cases, the tribunals seem to adopt the view that the lack of express exclusion of dispute resolutions clauses from the ambit of MFN Clauses evidences the consent of states to allow its application to dispute resolutions clauses.
The other view, and the more accurate view as argued in this paper, was adopted by the tribunal in Plama. The tribunal was confronted with an attempt to replace the applicable dispute settlement provisions as found in the Bulgaria-Cyprus BIT by the dispute settlement provisions in Bulgaria-Finland BIT. This was rejected inter-alia as (a) consent to arbitration must necessarily be ‘clear and unambiguous’, (b) MFN clauses, unless otherwise provided, apply only to substantive protections, (c) dispute settlement provisions are specifically negotiated and cannot fall within the scope of an MFN provision in a BIT. This view has been endorsed in cases such as Salini v Jordan,[18] Telenor v Hungary,[19] ICS v Argentina (‘ICS’),[20] Daimler v Argentina (‘Daimler’),[21] Kiliç v Turkmenistan (‘Kilic’),[22] and Berschader v Russia.[23]
There is a tendency to see Plama and Mafezzini as being on the opposite ends of the spectrum.[24] However, a closer look demonstrates that while broad reasoning on applicable principles differs, it may be possible to reconcile the two decisions. Plama saw Maffezini as an exception as the tribunal was concerned with a provision that is ‘non-sensical from a practical point of view’.[25] In doing so, Plama while acknowledging that Maffezini was not a general rule, left open the possibility of the Maffezini rule applying in exceptional circumstances. On the other hand, as opined in National Grid,[26] the facts of Plama may be seen as falling in one of the exceptions envisaged in Mafezzini since the case was concerned with creating consent for ICSID arbitration when none existed in the basic treaty. Viewed from this lens, the decisions which have used the MFN clause to allow investors to sidestep procedural conditions such as temporal domestic litigation requirements may be argued to be consistent with both Plama and Maffezini. This would leave only decisions in cases such as RosInvest and Garanti Koza to be problematic, as they allowed the investor to import the host state’s consent, when none existed under the basic treaty, through the MFN clause.[27] This paper however does not support such reconciliation between Plama and Maffezini, and argues that the use of MFN clauses to import dispute settlement provisions must be strictly restricted in all circumstances, unless expressly agreed by the parties in the basic treaty.
II. CREATION OF AN ARTIFICIAL DISTINCTION BETWEEN JURISDICTION AND ADMISSIBILITY IN TREATY ARBITRATIONS IS A NON-STARTER AND SHOULD NOT BE SUPPORTED
It is generally accepted that a challenge to jurisdiction concerns the competence of the tribunal to give any ruling at all in the case, whereas challenge to admissibility concerns the exercise of such jurisdiction in the case on grounds other than its ultimate merits.[28] In Oil Platforms, the ICJopined that challenge to admissibility refers to reasons why the court should not proceed with examination of the merits, despite the court having jurisdiction and the facts stated by the applicant state being assumed to be correct. Admissibility has also been understood to deal with suitability of a claim for adjudication on merits.[29]
Tribunals such as Hochtief and Teinver have taken the view that the above distinction between jurisdiction and admissibility holds true even in the context of treaty arbitrations and the ICSID Convention. There is also some academic support for this argument.[30] This paper however rejects the attempt to create any distinction between jurisdiction and admissibility in the context of the treaty arbitrations and the ICSID Convention.
First, distinction between jurisdiction and admissibility is relevant in the context of permanent courts such as the ICJ. Forinstance, in Guyana v Venezuela, the ICJ recently drew a distinction between jurisdiction and exercise of jurisdiction (i.e. admissibility) in the context of the monetary gold principle, holding that the question of indispensable third party is a question concerning admissibility and not jurisdiction of the ICJ.[31] There is however no justification for such a distinction being drawn in treaty arbitrations. When consent to arbitrate in investment treaties is subject to any conditions, such conditions constitute limits on the jurisdiction and therefore their examination raises questions concerning the jurisdiction of the tribunal and not admissibility of the claims. Consequently, the view taken in cases such as Hochtief and Teinver is incorrect in as much as they create an artificial distinction between jurisdiction and admissibility and consider conditions such as the 18-month domestic litigation requirement as an admissibility issue. Conditions such as the 18-month litigation requirement are limitations of consent to the jurisdiction of the investment tribunals.
The UNCTAD report created confusion in this regard by categorizing decisions based on whether they were rendered on jurisdiction or admissibility.[32] As recognized by the ILC Report,[33] the tribunal’s reliance on Tienver in the UNCTAD report to find merit in the admissibility analysis of the pre-domestic litigation requirement was unfounded since the UNCTAD report did not give any justifications for such reasoning but merely undertook a categorization exercise based on the reasoning adopted in different cases. The better view is the one taken by Thomas KC in his dissent in Hochtief as well as the majority in ICS, Daimler, andProf. Stern’s dissent in Impregilo, which recognized that conditions are by their very nature jurisdictional.[34] Unless such conditions to consent are complied with by the investor, the jurisdiction of the tribunal cannot be triggered.
Second, the argument that conditions to consent set out under the treaty relating to jurisdiction and not admissibility of claims draws support from the position taken by the ICJ in Northern Cameroons,[35] Djibouti,[36] and Congo v Rwanda,[37] wherein it has held that where an objection arises out of the jurisdictional compromissory clause and is concerned with conditions upon which the parties have expressed their consent, the objection concerns jurisdiction and not admissibility. Notably, the decision in Congo v Rwanda was relied upon in ICS to reject the position that the 18-month domestic litigation requirement was an admissibility issue.[38] The dispute resolution clause in an investment treaty is akin to a compromissiory clause in the ICJ context, since parties provide their consent, based on satisfaction of certain pre-conditions, to have their dispute resolved by an investment tribunal.
Third, another argument taken in support of the distinction in cases such as RosInvest is that procedural conditions such as 18-month domestic litigation requirement are waivable and thus pertain to admissibility.[39] This is unfounded, as the host state is capable of waiving any condition for its consent, and the capability of being waived does not deprive those conditions of their jurisdictional nature. By contrast, some jurisdictional requirements may not be waived at all. For example, even if an ICSID Contracting State consents to arbitrate with an investor who is not a national of another ICSID Contracting State, such consent cannot confer jurisdiction upon the ICSID and cannot make an ICSID tribunal being competent to hear an arbitration case.[40]
Fourth, unlike Rules of the Court of the ICJ, which expressly recognizes jurisdiction and admissibility as distinct questions,[41] there is no mention of admissibility under the ICSID Convention or the additional facility rules. The reasoning adopted in Abaclat v Argentina in relation to exhaustion of local remedies requirement pertaining to admissibility is faulty.[42] The correct view was taken by Abi Saab in his dissent in this case, which rejected the distinction between jurisdiction and admissibility in the ISDS context.[43] The strength of this reasoning is manifest in Article 26 of the ICSID Convention, which recognizes that states may require parties to exhaust local remedies as a condition to their consent to jurisdiction. As argued above, conditions to consent are jurisdictional in nature, and unless satisfied, there is no consent to form the basis of the tribunal’s jurisdiction.
III. ALLOWING THE MFN CLAUSE TO IMPORT HOST STATE’S CONSENT PUTS THE CART BEFORE THE HORSE
State consent is a positive act and it forms the bedrock of international dispute settlement. The reverse burden of excluding consent is and ought to be alien to international law to safeguard state sovereignty. While ambiguous language in a treaty may require the tools of treaty interpretation, as embodied in Article 31-32 of the VCLT,[44] to be utilised, treaty interpretation cannot be a tool to manufacture consent when none has been envisaged or provided by the host state. Maffezini erroneously adopts the reasoning that dispute settlement clauses fall within the scope of MFN clauses unless expressly excluded. This viewfails to consider that the invocation and consideration of the MFN clause is itself contingent upon the conditions to consent to the tribunal’s jurisdiction stipulated in the basic treaty being satisfied. The primary jurisdictional requirements i.e. ratione personae, ratione materia and ratione temporis under the basic treaty must first be met before the tribunal can interpret or allow an MFN claim. While MFN clauses may apply to all rights available to investors, they cannot alter the conditions stipulated in the basic treaty for access to such rights.[45] Maffezini proceeds from an incorrect assumption that all favourable dispute resolution provisions in treaties with other states are automatically incorporated into the basic treaty upon enactment.
There is no basis to allow the MFN clause to retroactively amend the dispute resolution provisions of the basic treaty. There is a fundamental difference between substantive provisions and dispute settlement provisions. The difference lies in the relationship that they respectively govern. The relationship that the former governs is between the two parties. The latter instead governs the relationship between the tribunal and the parties. One party cannot unilaterally change the relationship with the tribunal that a party has consented to. Prof Laurence’s dissent in Giranti Koz correctly recognises that consent cannot be imported from one treaty to another. This is unreasonable as it would mean that states specifically negotiated dispute resolution provisions knowing that such provisions would have no application in view of prevailing favourable provisions in other treaties.
The public policy exceptions created in Maffezini do not appear to be based on any sound principle. In Maffezini, the tribunal held that while MFN clause could apply to dispute resolution provisions, this rule would not apply to fundamental conditions to consent stipulated by parties in the treaty. There is no basis for the tribunal to categorise conditions to consent as fundamental and non-fundamental. Tribunals are creatures of the treaty, and must act within the four walls of the treaty provisions. It is not the tribunal’s duty to sit on the wisdom of the conditions in question, and treat certain conditions differently than others. A condition is binary in nature, which either fails or does not. If it fails, there is no basis for the tribunal to uphold its jurisdiction.
The doctrine of severability also supports the argument that MFN clause should be limited to substantive provisions, unless expressly extended to the dispute settlement provisions. The doctrine of severability provides that States enter into arbitration clauses/agreements as distinct agreements from the main treaty, and the validity of the main treaty does not affect the arbitration agreement.[46] This is evident from Article 45(1) of the ICSID Additional Facility Rules. The dispute settlement provisions under the arbitration agreement cannot be understood as treatment ejusdem generis under the main treaty, and therefore the MFN clause cannot automatically apply to it unless expressly adopted or incorporated by the states. Thus, when there are two separate agreements, there is no basis for the MFN clause in one agreement to automatically apply to the other agreement, in the absence of express wordings which allow reading the two agreements together.
The language of each investment treaty and MFN clause may be distinct. Every MFN provision is required to be interpreted as per its distinct terms. Some may expressly indicate intention to extend the MFN clause to dispute settlement provisions. This can be seen under Article 1(3) of the UK model BIT. Other MFN clauses may be broadly worded with the use of words such as ‘treatment’ and ‘all matters.’ Some tribunals have relied on treaty interpretation tools to interpret these terms to denote parties’ willingness to extend MFN clause to dispute settlement provisions. Arguments that state that consent should be gathered on a preponderance threshold ought to be rejected.[47] As noted in Plama, consent under international law must be express, clear, and unambiguous. Terms such as ‘treatment’ and ‘all matters’ ought not to be interpreted as express and clear consent unless there are supplementary interpretative aids such as subsequent state practice or travaux préparatoires of the treaty which can be used to demonstrate such consent.
IV. AMBATIELOS DOES NOT SUPPORT MAFFEZINI
A fundamental part of reasoning of Maffezini was premised on an erroneous reading of Ambatielos Claim. As opposed to Maffezini’s interpretation, Ambatielos discussed MFN in the context of administration of justice as a substantive protection in the sense of denial of justice in domestic courts.[48] As highlighted in Plama and Salini, Ambatielos did not in any manner relate to the import of dispute resolution provisions of another treaty into basic treaty. The use of the MFN clause may be justified in the context of due process violations under domestic law, as this would pertain to the substantive treatment accorded to the investors within the host state, as opposed to the right to access adjudication before international tribunals for violations of treaty provisions.
Ambatielos therefore did not disturb the traditional purpose of the MFN clause, which is to ensure non-discrimination in substantive treatment of investors and their investments. An accurate example to explain the above distinction is the decision in White Industries v India.[49] Australia invoked the MFN clause under the India-Australia BIT to import the effective means obligation from the India-Kuwait BIT. In this case, White Industries sought to enforce a commercial award against an Indian public sector undertaking before the domestic courts in India. In view of the substantial delay in enforcing the award before Indian courts, White Industries initiated arbitration under the India-Australia BIT alleging breach of the FET and MFN clauses among others. While the FET claim was rejected, the tribunal held that Indian courts violated the obligation to provide ‘effective means’ of asserting and enforcing claims in India. Notably, while the India-Australia BIT did not contain a substantive ‘effective means’ provision, the tribunal allowed White Industries to import the ‘effective means’ provision provided in the India-Kuwait BIT through the MFN clause in the India-Australia BIT.
The ‘effective means’ clause in White Industries therefore did not deal with procedural dispute resolution provisions to access international arbitration but instead substantive denial of justice/administration of justice. This was in line with Ambatielos, which also understood administration of justice as a substantive right and thus allowed it to fall within the ambit of the MFN clause.
V. SUBSTANTIVE RIGHTS NEED NOT BE ACCOMPANIED BY ENFORCEMENT RIGHTS UNDER INTERNATIONAL LAW
An argument favoured in Maffezini which does prima facie appear to carry weight is that dispute settlement provisions and substantive protections are inextricably linked in as much as it provides protection to investors and their investments, and therefore the ejusdem generis test ought to be satisfied. Absence of dispute resolution provisions would render substantive rights toothless, and parties would be unable to enforce their rights in any meaningful way. While appealing, there is no basis for such an argument.
As opposed to domestic legal order, dispute settlement is not inherent in substantive protections in international law, and can only be provided to parties by virtue of express, clear, and unambiguous consent of states.[50] There is no gainsaying that there might be investment treaties which provide substantive rights to investors but do not include any dispute settlement provisions. Recent Brazilian investment treaties entered with states such as Chile and India, in line with the Cooperation and Facilitation Investment Agreement, are examples of BITs without ISDS provisions. This argument militates against arguments that MFN clauses should apply to dispute resolution clauses since the clause is about allocation of adjudicatory power between domestic courts and international tribunals.[51]
Unlike domestic law, substantive rights do not automatically carry a right for enforcement under international law. This can be seen in cases of multilateral treaties or conventions which allow member states to make reservations to the dispute resolution provisions but not to the substantive obligations. This was recognised by Prof. Stern in her dissent in Impregilo, wherein she noted:
“31….For example, while there is no possibility to make a reservation to the substantive obligations accepted by States in the Genocide Convention, it is possible to make a reservation to the jurisdiction of the ICJ provided for in Article IX of the Convention to decide on the responsibility of States for the violation of the substantive rules, which demonstrates a clear distinction between substantives rules and jurisdictional rules.[52]”
It is further settled that international legal responsibility can exist notwithstanding the state withholding its consent to adjudication. For instance, in Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,[53] the ICJ dealt with a case wherein dealt with a situation where the concerned states refused to appoint their arbitrators such that the tribunal to adjudicate upon their international wrongs could not be constituted. The ICJ noted that while the failure to appoint arbitrators rendered it impossible for the applicant to access international adjudication, this did not allow the Court to revise the underlying treaty to provide a different mechanism for appointment of the tribunal. In doing so, however, the ICJ held that lack of international adjudication did not absolve the concerned states of their illegal acts, for which they would continue to carry international responsibility. The ICJ opined:
“p. 228….The failure of machinery for settling disputes by reason of the practical impossibility of creating the Commission provided for in the Treaties is one thing ; international responsibility is another. The breach of a treaty obligation cannot be remedied by creating a Commission which is not the kind of Commission contemplated by the Treaties. It is the duty of the Court to interpret the Treaties, not to revise them. The principle of interpretation expressed in the maxim : Ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties a meaning which, as stated above, would be contrary to their letter and spirit.[54]”
The above justifies distinct treatment of dispute resolution provisions and substantive provisions and rejects any inherent interlinks between the them.
VI. CONCLUSION
Tribunals would eventually be guided by treaty interpretation principles, as enshrined under Article 31 of the VCLT. This would point towards a BIT-by-BIT approach to examine the intention of the states. However, the general rule ought to be the one that was stipulated in Plama, which limitsthe MFN clause to substantive protections unless it can be shown through the text of the MFN clause that the states expressly consented to include the MFN clause in their arbitration agreement. That being said, Plama’s sympathy towards the reasoning in Maffezini is a source of unnecessary confusion and should not be used to justify Maffezini. The broad interpretation accorded to MFN clauses in Maffezini has opened the floodgates to treaty shopping which ought to be discouraged. While there are arguments in favour of a multilateral dispute settlement mechanism for investor state disputes,[55] until such a mechanism is achieved, the half-baked use of MFN clauses to multilateralize dispute settlement provisions should be avoided. MFN clauses must not be allowed to be used as a tool to fundamentally alter express jurisdictional conditions agreed between the states for dispute settlement. This would be counterproductive as it would lead to immense unpredictability and would permit investors to pick and choose provisions from various BITs.
[1] International Law Commission, Most-Favoured-Nation Clause: Final Report of the Study Group on the Most-Favoured-Nation Clause (2015) paras 82-140.
[2] ibid 35.
[3] US Nationals in Morocco (France v. United States), Judgement of 27 August 1952, (1952) ICJ Rep 176, 20.
[4] Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Decision of the Tribunal on Objections to Jurisdiction (25 January 2000).
[5] Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction (8 February 2005).
[6] Maffezini (n 4)[60].
[7] Maffezini (n 4)[49]; Award of the Commission of Arbitration established for the Ambatielos claim between Greece and the United Kingdom, dated March 6, 1956, United Nations: Reports of International Arbitral Awards, Vol. XII, 1963, p. 91.
[8] Siemens A.G. v. The Argentine Republic, ICSID Case No. ARB/02/8, Decision on Jurisdiction (3 August 2004).
[9] Gas Natural SDG, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/10, Decision of the Tribunal on Preliminary Questions on Jurisdiction (17 June 2005).
[10] Telefónica S.A. v. The Argentine Republic, ICSID Case No. ARB/03/20, Decision of the Tribunal on Objections to Jurisdiction (25 May 2006) (Sacerdoti, Brower, Siqueiros).
[11] Impregilo S.p.A. v. Argentine Republic, ICSID Case No. ARB/07/17, Award (21 June 2011).
[12] RosInvestCo UK Ltd. v. Russian Federation, SCC Case No. V079/2005, Award on Jurisdiction (October 2007).
[13] Garanti Koza LLP v. Turkmenistan, ICSID Case No. ARB/11/20, Decision on the Objection to Jurisdiction for Lack of Consent (3 July 2013).
[14] National Grid plc v. The Argentine Republic, UNCITRAL, Decision on Jurisdiction (20 June 2006) (Rigo Sureda, Debevoise, Garro).
[15] Hochtief Aktiengesellschaft v. Argentine Republic, ICSID Case No ARB/07/31, Decision on Jurisdiction, 24 October 2011.
[16] Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. Argentine Republic, ICSID Case No. ARB/09/1, Decision on Jurisdiction, 21 December 2012.
[17] Garanti Koza (n 13).
[18] 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 (9 November 2004).
[19] Telenor Mobile Communications AS v. Republic of Hungary, ICSID Case No. ARB/04/15, Award (13 September 2006).
[20] ICS Inspection and Control Services Limited (United Kingdom) v. The Republic of Argentina, UNCITRAL, PCA Case No. 2010-9, Award on Jurisdiction (10 February 2012).
[21] Daimler Financial Services AG v. Argentine Republic, ICSID Case No. ARB/05/1, Award (22 August 2012).
[22] Kiliç İnşaat İthalat İhracat Sanayi v Ticaret Anonim Şirketi v. Turkmenistan, ICSID Case No. ARB/10/1, Award (2 July 2013).
[23] Vladimir Berschader and Moïse Berschader v Russian Federation, SCC Case No. 080/2004, Award (21 April 2006).
[24] See Impregilo (n 11) Prof. Stern’s concurring and dissentingopinion[14].
[25] Plama (n 5) [224].
[26] National Grid (n 14) [92].
[27] See Julie Maupin, ‘MFN-based jurisdiction in investor–state arbitration: is there any hope for a consistent approach?’ (2011) 14 Journal of International Economic Law 157 https://academic.oup.com/jiel/article-abstract/14/1/157/856512 accessed on 13 May 2024.
[28] Gerald Firzmaurice, The Law and Procedure of the International Court of Justice (Grotius Publications 1986) 439.
[29] Jan Paulsson, ‘Jurisdiction and Admissibility’ (2005) Global Reflections on International Law, Commerce and Dispute Resolution, ICC Publishing 692, < https://cdn.arbitration-icca.org/s3fs-public/document/media_document/media012254599444060jasp_article_-_jurisdiction_and_admissibility_-_liber_amicorum_robert_briner.pdf> accessed on 10 May 2024.
[30] August Reinisch, ‘Jurisdiction and Admissibility in International Investment Law (2017) < https://icsid.worldbank.org/sites/default/files/parties_publications/C8394/Claimants%27%20documents/CL%20-%20Exhibits/CL-0454.pdf> accessed on 11 May 2024.
[31] Guyana v Venezuela, Arbitral Award of 3 October, ICJ Judgment of 6 April 2023, 63.
[32] UNCTAD Series on Issues in International Investment Agreements, Most Favoured National Treatment, (2010) 67-73.
[33] ILC Report (n 1) [113].
[34] Hochtief (n 15), Separate and Dissenting Opinion of J. Christopher Thomas, Q.C [31]; ICS (n 20); Daimler (n 21); (n 24).
[35] Northern Cameroons (Cameroon v United Kingdom), Judgment of 2 December 1963, ICJ Reports 1963, 15.
[36] Case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, 2008 ICJ Reports 177 [62]
[37] Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Judgment of 3 February 2006, 2006 ICJ Reports 6, [91]-[99].
[38] ICS (n 20).
[39] RosInvest (n 12) [152].
[40] ICSID Convention, Art. 25.
[41] ICJ Statute, Art 79.
[42] Abaclat and Others v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility (4 August 2011).
[43] ibid, Prof. Abi Saab’s dissenting opinion [24].
[44] VCLT, Arts. 31-32.
[45] Zacary Douglas, ‘The MFN clause in investment arbitration: treaty interpretation off the rails’ (2011) 2 Journal of International Dispute Settlement 97 < https://academic.oup.com/jids/article/2/1/97/843907> accessed on 3 May 2024.
[46] Christoph Scheurer, The ICSID Convention: A Commentary (2nd edn. CUP 2009) [622].
[47] Maupin (n 27).
[48] Douglas (n 45).
[49] White Industries Australia Ltd v India, Final award, IIC 529 (2011), 30 November 2011.
[50] Stern (n 24).
[51] Stephen Schill, ‘Allocating Adjudicatory Authority: Most-Favoured-Nation Clauses as a Basis of Jurisdiction – A Reply to Zachary Douglas’ (2011) 2 Journal of International Dispute Settlement 353.
[52] Stern (n 24) [31].
[53] Interpretation of Peace Treaties with Bulgaria, Hungary and Romania. Advisory Opinion, ICJ Reports 1950, 65.
[54] ibid 228.
[55] Schill (n 50).
Advocate | Bachelor of Civil Law, University of Oxford
