The Interpretation and Application of the Most-Favored-Nation Clause in Investment Arbitration: World Trade Institute Advanced Studies, cartea 12
Autor Anqi Wangen Limba Engleză Hardback – 14 sep 2022
In The Interpretation and Application of the Most-Favored-Nation Clause in Investment Arbitration, Dr. Anqi Wang provides suggestions for MFN drafting in future international investment agreements (IIAs), as well as for MFN application by investor-state dispute settlement (ISDS) tribunals in case of ambiguity. Dr. Wang conducts a systemic review of MFN clause in history and maps all the relevant ISDS cases. She argues that ISDS tribunals should interpret the MFN clause according to the treaty text on a case-by-case basis, and that tribunals should also consider state consent as the foundation for the jurisdiction of international adjudication, current IIA reform, and essential treaty interpretive principles.
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Specificații
ISBN-13: 9789004517882
ISBN-10: 900451788X
Pagini: 312
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria World Trade Institute Advanced Studies
ISBN-10: 900451788X
Pagini: 312
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria World Trade Institute Advanced Studies
Notă biografică
Anqi Wang, Ph.D. (2021), University of Bern, is a research fellow at the World Trade Institute. Her research focuses on the reform of international investment regime and dispute settlement. She has published articles on international investment arbitration and investment policy.
Cuprins
Acknowledgements
Abbreviations
Introduction
1History of the mfn Clause in International Law
1 The Evolution of the mfn Clause in International Trade Law
1.1The Genesis of the mfn Clause in the Middle Ages: From the 11th to the 16th Century
1.2The Appearance of Conditional and Unconditional mfn Clauses: The 18th and 19th Centuries
1.3The Status of the mfn Clause during an Unstable Period for World Trade: The 20th Century Onward
2 Incorporation and Development of the mfn Clause in International Investment Law
2.1The mfn Clause in the Colonial Era
2.2The mfn Clause in the Post-colonial Era
2.3The mfn Clause in the Global Era
2.4The mfn Clause in the Rebalancing Era
3 Codification Efforts by the International Law Commission
4 Conclusion
2Interpretation of the mfn Clause
1 Customary International Law
1.1The Expressio Unius est Exclusio Alterius Principle
1.2The Ejusdem Generis Principle
1.3The Contemporaneity Principle
2 Articles 31 and 32 of the vclt
2.1Article 31 of the vclt as Containing the Core Principles of Treaty Interpretation
2.1.1 Should Interpreters Follow the Textual or Teleological Approach to Treaty Interpretation?
2.1.2 Subsequent Agreements and Practices
2.1.2.1Subsequent Agreements
2.1.2.1.1 Joint Interpretation Authorized by Treaty Texts as Subsequent Agreements
2.1.2.1.2 Other Forms of Joint Interpretation
2.1.2.1.3 Non-disputing Party Submissions
2.1.2.2Subsequent Practices
2.1.3 Good Faith Principle
2.2Article 32 of the vclt as Containing Supplementary Methods of Treaty Interpretation
3 The Role of Arbitral Precedents
4 Conclusion
3Applying the mfn Clause for Higher Substantive Treatment
1 The Scope of Treatment Covered by mfn Clauses in iia s
1.1The Beneficiary of mfn Treatment (Ratione Personae)
1.2The Temporal Dimension of mfn Treatment (Ratione Temporis)
1.2.1 The Temporal Scope of the mfn Clause
1.2.1.1Prospective Formulation of mfn Clauses
1.2.1.2Pre/Post-establishment Approaches to mfn Clauses
1.2.2 The Temporal Scope of Treaties
1.2.2.1 Ratione Temporis and the Basic Treaty
1.2.2.2 Ratione Temporis and the Third-Party Treaty
1.3The Subject Matter of mfn Treatment (Ratione Materiae)
1.4Exceptions to mfn Clauses
2 mfn Clauses and Substantive Treatment
2.1 De Facto Breaches of mfn Clauses
2.1.1 “In Like Circumstances”
2.1.2 “Less Favorable Treatment”
2.1.3 Burden of Proof
2.1.4 Discriminatory Intent
2.2Invoking an mfn Clause in Pursuit of Obtaining a Higher Standard of Protection
2.2.1 The Incorporation of Fair and Equitable Treatment (fet) Clauses
2.2.2 The Incorporation of Full Protection and Security Clauses
2.2.3 The Incorporation of Expropriation Clauses
2.2.4 The Incorporation of Umbrella Clauses
2.2.5 The Incorporation of Other Substantive Treatment
3 Concluding Remarks
4Applying the mfn Clause to Avoid Procedural Preconditons
1 The Discussion Started by the Maffezini Case
2 Exhaustion of Local Remedies and Dispute Settlement Provisions
2.1Exhaustion of Local Remedies?
2.2Jurisdiction or Admissibility?
2.2.1 Requiring Remedies to Be Pursued in Local Courts as an Issue of Admissibility
2.2.1.1The Failure by Tribunals to Properly Apply the Ejusdem Generis Principle
2.2.1.2Public Policy Considerations
2.2.1.3Neglect to Consider the Precise Formulation of Dispute Settlement Clauses
2.2.2 Requiring Remedies to Be Pursued in Local Courts as an Issue of Jurisdiction
3 What Constitutes “More Favorable” Treatment?
3.1The Approach Considering Domestic Court as Less Favorable
3.2“Fork-in-the-Road” Requirements
3.3The Risk of Treaty-shopping: The Siemens Approach
4 Conclusion
5Applying the mfn Clause to Avoid Jurisdictional Obstacles
1 State Consent in Investment Arbitration
2 Cases Where Tribunals Refused to Establish Jurisdiction via the Application of an mfn Clause
2.1Application of mfn Clause to Establish Jurisdiction Ratione Personae
2.1.1 Broadening the Definition of “Investment”
2.1.2 Avoiding Legality Requirements
2.2Bypassing Limitations Contained in Dispute Settlement Provisions
2.3Replacing Dispute Settlement Provisions in a Basic Treaty
2.4Applying the Basic Treaty Retroactively
3 Cases Where Tribunals Established Jurisdiction via the Application of an mfn Clause
3.1Bypassing Limitations Contained in Arbitration Provisions
3.2Replacing the Chosen Forum for Dispute Settlement
3.3Manufacturing Jurisdiction through an Application of an mfn Clause
4 Can Jurisdiction Be Founded on the Basis of an mfn Clause?
4.1Limitation of the Traditional Interpretive Methods
4.2 The Incorrect Application of the Ejusdem Generis Principle
4.3Are the ilc Guiding Principles a Way Out?
5 Concluding Remarks
6Conclusion
1 Current Drafting Trends in Relation to mfn Clauses
1.1Marginalization of the mfn Clause
1.1.1 Soft Commitments
1.1.2 The Total Absence of an mfn Clause
1.2Refinement of the mfn Clause
1.2.1 Retraining mfn Clause From Substantive Obligations
1.2.2 Clarifying “in Like Circumstances”
1.2.3 Excluding Investor-State Dispute Mechanism From mfn Treatment
2 A More Balanced Approach to mfn Interpretation
Bibliography
Table of Materials
Index
Abbreviations
Introduction
1History of the mfn Clause in International Law
1 The Evolution of the mfn Clause in International Trade Law
1.1The Genesis of the mfn Clause in the Middle Ages: From the 11th to the 16th Century
1.2The Appearance of Conditional and Unconditional mfn Clauses: The 18th and 19th Centuries
1.3The Status of the mfn Clause during an Unstable Period for World Trade: The 20th Century Onward
2 Incorporation and Development of the mfn Clause in International Investment Law
2.1The mfn Clause in the Colonial Era
2.2The mfn Clause in the Post-colonial Era
2.3The mfn Clause in the Global Era
2.4The mfn Clause in the Rebalancing Era
3 Codification Efforts by the International Law Commission
4 Conclusion
2Interpretation of the mfn Clause
1 Customary International Law
1.1The Expressio Unius est Exclusio Alterius Principle
1.2The Ejusdem Generis Principle
1.3The Contemporaneity Principle
2 Articles 31 and 32 of the vclt
2.1Article 31 of the vclt as Containing the Core Principles of Treaty Interpretation
2.1.1 Should Interpreters Follow the Textual or Teleological Approach to Treaty Interpretation?
2.1.2 Subsequent Agreements and Practices
2.1.2.1Subsequent Agreements
2.1.2.1.1 Joint Interpretation Authorized by Treaty Texts as Subsequent Agreements
2.1.2.1.2 Other Forms of Joint Interpretation
2.1.2.1.3 Non-disputing Party Submissions
2.1.2.2Subsequent Practices
2.1.3 Good Faith Principle
2.2Article 32 of the vclt as Containing Supplementary Methods of Treaty Interpretation
3 The Role of Arbitral Precedents
4 Conclusion
3Applying the mfn Clause for Higher Substantive Treatment
1 The Scope of Treatment Covered by mfn Clauses in iia s
1.1The Beneficiary of mfn Treatment (Ratione Personae)
1.2The Temporal Dimension of mfn Treatment (Ratione Temporis)
1.2.1 The Temporal Scope of the mfn Clause
1.2.1.1Prospective Formulation of mfn Clauses
1.2.1.2Pre/Post-establishment Approaches to mfn Clauses
1.2.2 The Temporal Scope of Treaties
1.2.2.1 Ratione Temporis and the Basic Treaty
1.2.2.2 Ratione Temporis and the Third-Party Treaty
1.3The Subject Matter of mfn Treatment (Ratione Materiae)
1.4Exceptions to mfn Clauses
2 mfn Clauses and Substantive Treatment
2.1 De Facto Breaches of mfn Clauses
2.1.1 “In Like Circumstances”
2.1.2 “Less Favorable Treatment”
2.1.3 Burden of Proof
2.1.4 Discriminatory Intent
2.2Invoking an mfn Clause in Pursuit of Obtaining a Higher Standard of Protection
2.2.1 The Incorporation of Fair and Equitable Treatment (fet) Clauses
2.2.2 The Incorporation of Full Protection and Security Clauses
2.2.3 The Incorporation of Expropriation Clauses
2.2.4 The Incorporation of Umbrella Clauses
2.2.5 The Incorporation of Other Substantive Treatment
3 Concluding Remarks
4Applying the mfn Clause to Avoid Procedural Preconditons
1 The Discussion Started by the Maffezini Case
2 Exhaustion of Local Remedies and Dispute Settlement Provisions
2.1Exhaustion of Local Remedies?
2.2Jurisdiction or Admissibility?
2.2.1 Requiring Remedies to Be Pursued in Local Courts as an Issue of Admissibility
2.2.1.1The Failure by Tribunals to Properly Apply the Ejusdem Generis Principle
2.2.1.2Public Policy Considerations
2.2.1.3Neglect to Consider the Precise Formulation of Dispute Settlement Clauses
2.2.2 Requiring Remedies to Be Pursued in Local Courts as an Issue of Jurisdiction
3 What Constitutes “More Favorable” Treatment?
3.1The Approach Considering Domestic Court as Less Favorable
3.2“Fork-in-the-Road” Requirements
3.3The Risk of Treaty-shopping: The Siemens Approach
4 Conclusion
5Applying the mfn Clause to Avoid Jurisdictional Obstacles
1 State Consent in Investment Arbitration
2 Cases Where Tribunals Refused to Establish Jurisdiction via the Application of an mfn Clause
2.1Application of mfn Clause to Establish Jurisdiction Ratione Personae
2.1.1 Broadening the Definition of “Investment”
2.1.2 Avoiding Legality Requirements
2.2Bypassing Limitations Contained in Dispute Settlement Provisions
2.3Replacing Dispute Settlement Provisions in a Basic Treaty
2.4Applying the Basic Treaty Retroactively
3 Cases Where Tribunals Established Jurisdiction via the Application of an mfn Clause
3.1Bypassing Limitations Contained in Arbitration Provisions
3.2Replacing the Chosen Forum for Dispute Settlement
3.3Manufacturing Jurisdiction through an Application of an mfn Clause
4 Can Jurisdiction Be Founded on the Basis of an mfn Clause?
4.1Limitation of the Traditional Interpretive Methods
4.2 The Incorrect Application of the Ejusdem Generis Principle
4.3Are the ilc Guiding Principles a Way Out?
5 Concluding Remarks
6Conclusion
1 Current Drafting Trends in Relation to mfn Clauses
1.1Marginalization of the mfn Clause
1.1.1 Soft Commitments
1.1.2 The Total Absence of an mfn Clause
1.2Refinement of the mfn Clause
1.2.1 Retraining mfn Clause From Substantive Obligations
1.2.2 Clarifying “in Like Circumstances”
1.2.3 Excluding Investor-State Dispute Mechanism From mfn Treatment
2 A More Balanced Approach to mfn Interpretation
Bibliography
Table of Materials
Index