Most-favoured-nation (“MFN”) clauses are included in many investment treaties, and in investment chapters in free trade agreements.1 Such clauses vary in wording. They will typically require that States party to the investment treaty not subject investors and/or their investments to treatment less favourable than that which they accord to the investors and/or investments of other States.2 The obligation to accord investors and/or their investments most-favoured-nation treatment is a treaty-based requirement; MFN treatment is not required under customary law.
Agreement Between the Republic of Guatemala and the Czech Republic for the Promotion and Reciprocal Protection of Investments, adopted on 8 July 2003, entered into force on 29 April 2005, Article 3(1); Agreement between the Argentine Republic and the Kingdom of Spain on the Reciprocal Promotion and Protection of Investments, adopted on 3 October 1991, entered into force on 28 September 1992, Article IV(2).
II. General treaty practice
The wording and placement of MFN clauses, as well as express and implied exceptions, will impact their interpretation and effect. MFN clauses may appear alone or alongside other obligations, including national treatment3 or fair and equitable treatment.4 MFN clauses will often be accompanied by express exceptions which provide that MFN treatment is not required in relation to certain treatment including, for instance, government procurement measures, taxation measures, or benefits accorded under agreements establishing customs unions or common market or free trade areas.5 MFN clauses may also be limited to particular types of treatment such as, for example, treatment related to the “management, maintenance, use, enjoyment or disposal” of the investment.6 Other MFN clauses limit the requirement of comparable treatment to investors and/or investments in “like circumstances” or “similar situations”.7 MFN clauses may also be subject to implied limitations. The ejusdem generis principle, for example, limits MFN clauses to treatment of the same category as that to which the clause relates.8
Agreement between the Republic of Turkey and the Republic of Uzbekistan concerning the Reciprocal Promotion and Protection of Investments, adopted on 28 April 1992, entered into force on 18 May 1995, Article II(4); North American Free Trade Agreement, adopted on 17 December 1992, entered into force on 1 January 1994, Article 1108(7); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Oriental Republic of Uruguay for the Promotion and Protection of Investments, adopted on 21 October 1991, entered into force on 1 August 1997, Article 7.
North American Free Trade Agreement, adopted on 17 December 1992, entered into force on 1 January 1994, Article 1103; Agreement between the Republic of Turkey and the Republic of Uzbekistan concerning the Reciprocal Promotion and Protection of Investments, adopted on 28 April 1992, entered into force on 18 May 1995, Article II(2).
MFN clauses are designed to ensure equality and non-discrimination in the treatment of protected investors vis-à-vis other foreign investors in the host State.9 As noted by the Bayindir tribunal, MFN clauses are designed to “provide a level playing field…between foreign investors from different countries”.10 The National Grid tribunal similarly noted that MFN clauses are “an important element to ensure that foreign investors are treated on a basis of parity with other foreign investors and with national investors when they invest abroad”.11
A. MFN as a relative treatment obligation
An MFN clause may operate as a relative treatment obligation to preclude the host State from treating a protected investor and/or their investment in a manner less favourable than investors and/or investments from third States.12 Where the MFN clause is used as a relative treatment obligation, it will function similarly to the national treatment13 As a relative treatment obligation, MFN clauses prohibit the host State from discriminating against the protected investor vis-à-vis other foreign investors.14 The precise requirements to establish a breach of the MFN clause as a relative treatment obligation will depend upon the terms of the clause. Typically, it will entail analysis of whether the host State accorded different, less favourable, treatment to the protected investor vis-à-vis a comparable foreign investor.15 Under MFN clauses, States will usually retain the capacity to make reasonable distinctions between investors and/or investments, including for public purposes.16 While the MFN clause can be used as a substantive protection standard in its own right, there have been few instances in which investors have succeeded in such claims.17
B. MFN by reference to a comparator treaty
More common is the invocation of MFN treatment by reference to treaties between the host State and a third State (‘comparator treaties’) which provide protection more favourable than that accorded under the treaty containing the MFN clause (‘base treaty’). The use of MFN clauses by reference to a comparator treaty has been linked to a de facto “multilateralization” of investment treaty law.18 As Schill notes, allowing MFN clauses to take effect by reference to comparator treaties turns MFN clauses into “multilateralization devices cast in bilateral form that prevent the states granting MFN treatment from shielding more favorable bilateral bargains contained in international treaties with third states from multilateralization”.19 MFN clauses have been used to invoke more favourable treatment in comparator treaties concerning both dispute settlement and substantive protection.
Some tribunals and commentators reject that MFN clauses can apply to dispute settlement provisions absent express wording to such effect.20 In Plama, for example, the tribunal held that “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”.21 That tribunal held that the MFN clause at issue could not be interpreted to apply to dispute settlement, basing this decision upon an analysis of the wording of the clause and exceptions to MFN treatment contained therein;22 the context of the clause;23 the object and purpose of the treaty;24 the States parties’ treaty practice;25 and the circumstances surrounding the conclusion of the treaty,26 alongside other considerations.27
Some MFN clauses expressly address this issue. Some States, for instance, expressly exclude the application of MFN clauses to matters of dispute settlement. Article 8.5 of the free trade agreement between Peru and Australia, for example, provides that most-favoured-nation treatment “does not encompass international dispute resolution procedures or mechanisms”.28 Conversely, other States expressly provide that the MFN clause may operate with respect to matters of dispute settlement. The MFN clause in the United Kingdom-Sierra Leone BIT, for example, specifies that “[f]or the avoidance of doubt it is confirmed that [MFN treatment] shall apply to the provisions of Articles 1 to 11 of this Agreement”, such that the MFN provision of that BIT would apply also to the Article 8 investor-State dispute settlement clause.
The application of MFN clauses to matters of dispute settlement will thus depend in each case upon the interpretation of the treaty, including any express directions contained therein vis-à-vis the application of the MFN clause to matters of dispute settlement. Tribunals adopting the Plama line of analysis will nonetheless require clear support to accept such a use of the MFN clause, adopting what might be in effect a presumption in the treaty interpretation process against the extension of MFN treatment to matters of dispute settlement.
Other tribunals and commentators accept that MFN clauses can apply to dispute settlement provisions. As the Maffezini tribunal held, for instance, “if a third-party treaty contains provisions for the settlement of disputes that are more favorable 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 favored nation clause.”29 The Maffezini tribunal nonetheless accepted that “there are some important limits that ought to be kept in mind. 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, as will often be the case. The scope of the clause might thus be narrower than it appears at first sight”.30 For that tribunal, a range of considerations (albeit not present on the facts before it) could restrict the capacity for an investor to invoke an MFN clause in relation to matters of dispute settlement: “First, if one contracting party has conditioned its consent to arbitration on the exhaustion of local remedies, which the ICSID Convention allows, this requirement could not be bypassed by invoking the most favored nation clause in relation to a third-party agreement that does not contain this element since the stipulated condition reflects a fundamental rule of international law. Second, if the parties have agreed to a dispute settlement arrangement which includes the so-called fork in the road, that is, a choice between submission to domestic courts or to international arbitration, and where the choice once made becomes final and irreversible, this stipulation cannot be bypassed by invoking the clause. This conclusion is compelled by the consideration that it would upset the finality of arrangements that many countries deem important as a matter of public policy. Third, if the agreement provides for a particular arbitration forum, such as ICSID, for example, this option cannot be changed by invoking the clause, in order to refer the dispute to a different system of arbitration. Finally, if the parties have agreed to a highly institutionalized system of arbitration that incorporates precise rules of procedure, which is the case, for example, with regard to the North America Free Trade Agreement and similar arrangements, it is clear that neither of these mechanisms could be altered by the operation of the clause because these very specific provisions reflect the precise will of the contracting parties. Other elements of public policy limiting the operation of the clause will no doubt be identified by the parties or tribunals.”31 Even where a tribunal permits an investor to make use of an MFN clause in relation to matters of dispute settlement, therefore, such use may again be impacted by the terms of the treaty, including any express or implied limitations to the scope of the MFN clause contained therein.32
MFN clauses may also be invoked by investors seeking to benefit from more favourable substantive provisions in comparator treaties. In such cases, the host State is alleged to breach the MFN clause by failing to accord the investor the more favourable protections that it has accorded to other investors under a comparator treaty.33 In EDF, for example, the tribunal held that the investor could invoke an MFN clause to have “recourse to the ‘umbrella clauses’ of third-country treaties”.34 It held that “[t]o ignore the MFN clause in this case would permit more favorable treatment to investors protected under third countries [treaties], which is exactly what the MFN Clause is intended to prevent."35 The capacity for investors to use MFN clauses in this manner is generally accepted by commentators and tribunals, but more recent cases have indicated potential limitations on the use of MFN clauses in this way.36 The scope of the more favourable treatment that may be invoked may in any case be further limited by the terms of the base treaty. The wording of MFN clauses and the ejusdem generis principle, in particular, have been used to preclude investors from invoking MFN clauses to benefit from substantive protections that are not already contained in the base treaty.37 So, too, the arbitration clause in the base treaty might further limit the use that may be made of comparator treaties through the MFN clause.38 Thus, although MFN clauses may act as a potential “potent ratchet”39 for substantive protection, their operation in practice has been “narrower than generally assumed to be the case”.40
Salini Construttori 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, paras. 116-119; Vladimir Berschader and Moise Berschader v. Russia Federation, SCC Case No. 080/2004, Award, 21 April 2006, para. 206; Wintershall Aktiengesellschaft v. Argentine Republic, ICSID Case No. ARB/04/14, Award, 8 December 2008, para. 167.
Bilateral Agreement for the Promotion and Protection of Investments between the Government of the United Kingdom of Great Britain and Northern Ireland and Republic of Colombia, adopted on 17 March 2010, entered into force 10 October 2014, Article III(2); Free Trade Agreement between the Government of Australia and the Government of the People’s Republic of China, adopted on 17 June 2015, entered into force on 20 December 2015, Article 9.4(2).
Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Decision of the Tribunal on Objection to Jurisdiction, 25 January 2000, para. 56; Gas Natural SDG, S.A. v. Argentine Republic, ICSID No. ARB/03/10, Decision of the Tribunal on Preliminary Questions on Jurisdiction, 17 June 2005, para. 49; Hochtief Aktiengesellschaft v. Argentine Republic, ICSID Case No. ARB/07/31, Decision on Jurisdiction, 24 October 2011, para. 72.
Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Decision of the Tribunal on Objection to Jurisdiction, 25 January 2000, para. 62; Técnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No. ARB(AF)/00/2, Award, 29 May 2003, para. 74; Wintershall Aktiengesellschaft v. Argentina, ICSID Case No. ARB/04/14, Award, 8 December 2008, para. 162.
Banifatemi, Y., The Emerging Jurisprudence on the Most-Favoured-Nation Treatment in Investment Arbitration, in Andrea Bjorklund, A., Laird, I., and Ripinsky, S., (eds.), Investment Treaty Law: Current Issues III, British Institute of International and Comparative Law, 2009 pp. 241-273
Batifort, S. and Heath, J.B., The New Debate on the Interpretation of MFN Clauses in Investment Treaties: Putting the Brakes on Multilateralization, American Journal of International Law, 2018, pp. 873-913
Caron, D. D. and Shirlow, E., Most Favoured Nation Treatment – Substantive Protection in Investment Law, in Kinnear, M., Fischer G.R., Almeida J.M., Torres L.F., Bidegain, M.U., Building International Investment Law: The First 50 Years of ICSID, 2015
Douglas, Z., The MFN Clause in Investment Arbitration: Treaty Interpretation Off the Rails, Journal of International Dispute Settlement, 2010, pp. 97-113
Greenwood, C., Most Favoured Nations Clauses in BITs – What is their Real Purpose (and their Real Effect)? – Third Annual EFILA Lecture, in Mistelis, L., and Lavranos, N., European Investment Law and Arbitration Review, 2018, pp. 343-356
Paparinskis, M., MFN Clauses and International Dispute Settlement: Moving beyond Maffezini and Plama?, ICSID Review – Foreign Investment Law Journal, 2011, pp. 14-58
Pérez-Aznar, F., The Use of Most-Favoured-Nation Clauses to Import Substantive Treaty Provisions in International Investment Agreements, Journal of International Economic Law, 2018, pp. 777-805
Radi, Y., The Application of the Most-Favoured-Nation Clause to the Dispute Settlement provisions of Bilateral Investment Treaties: Domesticating the ‘Trojan Horse’, European Journal of International Law, 2007, pp. 757-774
Valenti, M., The Most Favoured Nation Clause in BITs as a Basis for Jurisdiction in Foreign Investor-Host State Arbitration, Arbitration International, 2008, pp. 447-466
Wong, J., The Application of Most-Favored-Nation Clauses to Dispute Resolution Provisions in Bilateral Investment Treaties, Asian Journal of WTO & International Health Law and Policy, 2008, pp. 171-198