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MFN Clauses as Bilateral Commitments to Multilateralism: A Reply to Simon Batifort and J. Benton Heath

Published online by Cambridge University Press:  13 February 2018

Stephan W. Schill
Stephan W. Schill*
Affiliation:
Stephan W. Schill is Professor of International and Economic Law and Governance at the University of Amsterdam.
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Extract

Most-favored-nation (MFN) clauses have been included in international commercial treaties for many centuries. They also figure prominently as standard provisions in almost any international investment agreement (IIA). Their longstanding and widespread use notwithstanding, investment law doctrine and arbitral practice continue to struggle with the clauses’ application and interpretation, in particular as regards their scope of application. What Stanley Hornbeck observed more than one hundred years ago in this Journal, that “there appear[s] constant disagreements and ever-recurring irritation over what is the meaning and what are the obligations attaching to this or that [MFN] clause,” still characterizes the practice of investment tribunals and the literature on MFN clauses in IIAs today.

Type
Notes and Comments
Information
American Journal of International Law , Volume 111 , Issue 4 , October 2017 , pp. 914 - 935
Copyright
Copyright © 2018 by The American Society of International Law 

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References

1 For a brief account of the history of most-favored-nation (MFN) clauses, see Schwarzenberger, Georg, The Most-Favoured-Nation Standard in British State Practice , 22 British Y.B. Int'l L. 96, 97 (1945)Google Scholar, and, more in-depth, Raj Bhala, Modern GATT Law, Vol. 1, paras. 9-013–9-018 (2d ed. 2013). Unilateral grants of MFN treatment can even be traced back to the eleventh century, see Ustor, Endre, First Report on the Most-Favoured-Nation Clause , 21 ILC Y.B., Vol. II, 157, paras. 10–12 (1969)Google Scholar.

2 See, e.g., Acconci, Pia, Most Favoured Nation Treatment , in The Oxford Handbook of International Investment Law 363, 364 (Muchlinski, Peter, Ortino, Federico & Schreuer, Christoph eds., 2008)Google Scholar.

3 Hornbeck, Stanley, The Most-Favored-Nation Clause , 3 AJIL 395 (1909)Google Scholar.

4 See Schill, Stephan W., Maffezini v. Plama: Reflections on the Jurisprudential Schism in the Application of Most-Favored-Nation Clauses to Matters of Dispute Settlement , in Building International Investment Law: The First 50 Years of ICSID 251 (Kinnear, Meg, Fischer, Geraldine R., Almeida, Jara Minguez, Torres, Luisa Fernanda & Bildegain, Mariée Uran eds., 2016)Google Scholar (with further references to the relevant literature).

5 This functioning of MFN clause is often inaccurately referred to as “importing” standards of treatment from other international investment agreements (IIAs). However, the standards of treatment from the third-country IIA never become part of the treaty containing the MFN clause. Rather the MFN clause entitles the beneficiary to the same treatment as that which is extended to the beneficiaries of the third-country IIA. MFN clauses are therefore not instruments that change the content of the rights and obligations under the basic treaty; they merely require equal treatment with the beneficiaries of the third-country IIA.

6 İçkale İnşaat Limited Şirketi v. Turkmenistan, ICSID Case No. ARB/10/24, Award, paras. 314–32 (Mar. 8, 2016).

7 See European Union-Canada Comprehensive Economic and Trade Agreement, Art. 8.7 (signed Oct. 30, 2016, provisionally applied since Sept. 21, 2017) [hereinafter CETA].

8 The practice under the North-American Free Trade Agreement (NAFTA) is discussed extensively in Simon Batifort & Heath, J. Benton, The New Debate on the Interpretation of MFN Clauses in Investment Treaties: Putting the Brakes on Multilateralization , 111 AJIL 873, 899–905 (2018)Google Scholar (in this issue).

9 Id. at 873.

10 Cf. id. at 874 (claiming that their own approach “drives toward a more balanced approach to the interpretation of MFN clauses”).

11 Id.

12 Id.

13 Id. at 875 (arguing that “[t]he stakes of this debate are much higher than simply selecting the proper interpretation of a single clause in a single dispute. For some, the use of MFN to import substantive standards of treatment forms a key legal basis for the ‘multilateralization’ of international investment law.”). For the view that international investment law constitutes a multilateral regime built on the basis of bilateral treaties, see Stephan W. Schill, The Multilateralization of International Investment Law (2009). For similar views, see Ephraim Chalamish, The Future of Bilateral Investment Treaties: A De Facto Multilateral Agreement?, 34 Brook. J. Int'l L. 303–54 (2009); Santiago Montt, State Liability in Investment Treaty Arbitration—Global Constitutional and Administrative Law in the BIT Generation (2009); Jeswald W. Salacuse, The Law of International Investment Treaties (2010).

14 Batifort and Heath rightly raise three sets of issues that will influence that debate—that is, the question to what extent recalibrated MFN clauses in more recent treaties affect the interpretation of older, non-recalibrated bilateral investment treaties (BITs); the need for renewed attention to specific terms of the treaty in question; and the opportunity to reconsider prevailing theories about the purpose of these clauses in investment treaties. But they do not dig deeper in providing answers that contracting states, disputing parties, and dispute settlement institutions (courts and tribunals) require in order to put the operation of MFN clauses in new investment treaties into practice. Faithful to the U.S. tradition of critical legal studies, Batifort and Heath deconstruct and query the prevailing view on the interpretation of MFN clauses in IIAs, but do not provide a constructive analysis as to how the substantive issues they raise should be resolved.

15 Article 8.7 of CETA provides:

For greater certainty, the “treatment” referred to in paragraphs 1 and 2 does not include procedures for the resolution of investment disputes between investors and states provided for in other international investment treaties and other trade agreements. Substantive obligations in other international investment treaties and other trade agreements do not in themselves constitute “treatment,” and thus cannot give rise to a breach of this Article, absent measures adopted or maintained by a Party pursuant to those obligations.

Similar clauses can also be found in other, more recent IIAs. See the examples listed in Batifort & Heath, supra note 8, at 905–06.

16 This is so independently of the qualifier MFN clauses in newer IIAs, such as Art. 8.7 of CETA, often contain, which makes clear “[f]or greater certainty” that better substantive standards of treatment under third-country treaties are not covered by the scope of the MFN clause. To the extent such a qualifier does not reflect a position under general international law or embodies a departure from the hitherto standard IIA practice, its effect is limited to the specific IIA in which it is contained and cannot be used to modify the rights and obligations under unrelated treaties. It clarifies merely the interpretation of the MFN clause to which is refers and has no effect on MFN clauses contained in other treaties. More generally on the possibilities and limits of using third-country IIAs, in particular newer ones, for the purpose of interpreting older IIAs, see Mitchell, Andrew D. & Munro, James, Someone Else's Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements , 28 Eur. J. Int'l L. 669 (2017)Google Scholar.

17 Batifort & Heath, supra note 8, at 886–87 (arguing that “[t]ogether, the top-down approach and the procedure/substance dichotomy have fostered what might be called a ‘sticky default’ view on the use of MFN clauses to import standards of treatment: tribunals and commentators tend to presume that states parties to investment treaties have agreed to this use of MFN, unless the treaty provides otherwise”).

18 Id. at 887–89. (claiming that the dispute settlement cases post-Maffezini were the “seeds of the conventional wisdom”).

19 Id. at 887.

20 Id. at 888 (claiming that “[t]hrough repetition of this dichotomy between procedure and substance, the post-Maffezini debate ‘reinforced the notion that investors may invoke substantive right[s] through the MFN clause’”); similarly, id. at 889 (arguing that “[t]he post-Maffezini debate has thus given rise to a widely shared view that the essential function of MFN clauses in investment treaties is to import treaty standards”).

21 Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award, para. 54 (June 27, 1990).

22 Id.

23 This conclusion is supported by the fact that the AAPL Tribunal elaborated on many issues that were not strictly necessary for the resolution of the concrete dispute, but which it saw as important obiter on the interpretation of investment treaties. See, for example, the Tribunal's extensive elaboration on treaty interpretation (id., paras. 39–40, 56) and its thorough attention to precedent of various early twentieth century claims commissions and scholarship reaching as far back as Vattel (see, e.g., id., paras. 40, 47–48, 53, 56, 63, 65, 74, 75). Thus, had there been any doubt as to the contours or application of the MFN clause to questions of substance, one can safely presume that the Tribunal would have provided more developed reasons.

24 CME Czech Republic B.V. v. The Czech Republic, UNCITRAL, Final Award, para. 500 (Mar. 14, 2003); but see the Separate Opinion of Ian Brownlie: CME v. Czech Republic, Separate Opinion on the Issues at the Quantum Phase, para. 11 (considering that such an application of an MFN clause would have the effect that “[t]he express choice of a compensation clause becomes nugatory … ”).

25 ADF Group Inc. v. United States of America, ICSID Case No. ARB(AF)/00/1, Award, paras. 193–98 (Jan. 9, 2003). For such a reading, see Schill, supra note 13, at 142–43.

26 Batifort & Heath, supra note 8, at 900–02.

27 See Pope & Talbot, Inc. v. The Government of Canada, UNCITRAL/NAFTA, Award on the Merits of Phase 2, paras. 108–09 (Apr. 10, 2001); Pope & Talbot, Inc. v. The Government of Canada, UNCITRAL/NAFTA, Award in Respect of Damages, para. 57 (May 31, 2002). For the standard of review under the international minimum, see L. F. H. Neer and Pauline E. Neer (United States) v. Mexico, Opinion, 4 R.I.A.A. 61, 62 (Oct. 15, 1926).

28 Pope & Talbot, Award on the Merits of Phase 2, supra note 27, paras. 110–11.

29 Id., para. 117 (observing that “NAFTA investors and investments that would be denied access to the fairness elements untrammeled by the ‘egregious’ conduct threshold that Canada would graft onto Article 1105 would simply turn to Articles 1102 and 1103 for relief”). Notably, the Tribunal used the argument that third-party BITs contained more favorable expressions of fair and equitable treatment (FET) directly in order to interpret Article 1105(1) of NAFTA.

30 NAFTA Free Trade Commission, Notes of Interpretation of Certain Chapter 11 Provisions, Section B (July 31, 2001), available at http://www.sice.oas.org/tpd/nafta/Commission/CH11understanding_e.asp.

31 See Pope & Talbot, Award in Respect of Damages, supra note 27, para. 12 (“The Tribunal's view is well known—the Commission's interpretation would, because of Article 1103 … produce the absurd result of relief denied under Article 1105 but restored under Article 1103.”).

32 Id., para. 66 (holding that Canada's conduct violated even the more restrictive FET standard).

33 Batifort & Heath, supra note 8, at 874.

34 The authors cited by Batifort & Heath, id. at 874, n. 3 and n. 5, as examples of proponents of a “top-down” approach do summarize the prevailing approach to applying MFN clauses in IIAs as attracting better substantive standards of treatment granted under the host state's third-country IIAs. But the authors concerned do not deny the relevance of looking at the individual wording of the MFN clause in question, nor do they develop interpretative theories for MFN clauses that would go contrary to a treaty-by-treaty approach.

35 See Schill, supra note 13, at 153–73.

36 Examples are, amongst others, Georges Abi-Saab, Laurence Boisson de Chazournes, David D. Caron, James R. Crawford, Pierre-Marie Dupuy, Christopher Greenwood, Gilbert Guillaume, Francisco Orrego Vicuña, W. Michael Reisman, Stephen M. Schwebel, Bruno Simma, Brigitte Stern, Peter Tomka, Santiago Torres Bernardez, and Hans Van Houtte.

37 Institut de Droit International, 18th Commission, Legal Aspects of Recourse to Arbitration by an Investor Against the Authorities of the Host State Under Inter-State Treaties, Tokyo Session 2013, Resolution, Article 12 (Sept. 13, 2013), available at www.idi-iil.org/app/uploads/2017/06/2013_tokyo_en.pdf.

38 See ILC, Study Group on the Most-Favoured-Nation Clause, Final Report, UN Doc. A/CN.4/L.852, paras. 213–14 (2015) [hereinafter 2015 ILC Study Group Final Report]. Statements clarifying that MFN clauses have to be interpreted based on a treaty-by-treaty approach can be found throughout the report. See, in particular, id., paras. 145–49, where the ILC Study Group expressed its approach particularly clearly. Thus, it explained at id., para. 149 that “the interpretation of any particular MFN provision must be in accordance with articles 31–33 of the VCLT. Thus, while guidance can be sought from the meaning of MFN treatment in other agreements each MFN provision must be interpreted on the basis of its own wording and the surrounding context of the agreement it is found in. As a result, there is no basis for concluding that there will be a single interpretation of an MFN provision applicable across all investment agreements.” See also id., paras. 91, 163, 173.

39 For a challenge to a treaty-by-treaty approach to interpreting MFN clauses, see Douglas, Zachary, The MFN Clause in Investment Arbitration: Treaty Arbitration Off the Rails , 2 J. Int'l Disp. Settlement 97 (2011)Google Scholar (arguing that general principles on MFN clauses should be given preference, instead of celebrating a cult of the dictionary). For a critique of this approach, both in terms of Douglas's approach to interpretation and in respect of the content of general principles he proclaims, see Schill, Stephan W., Allocating Adjudicatory Authority: Most-Favoured-Nation Clauses as a Basis of Jurisdiction—A Reply to Zachary Douglas , 2 J. Int'l Disp. Settlement 353 (2011)Google Scholar. Meanwhile, Douglas himself seems to have given up his opposition to a treaty-by-treaty approach to interpreting MFN clauses, if a recent Decision on Jurisdiction of a Tribunal, on which Douglas sat as an arbitrator, is any indication. See Beijing Urban Construction Group Co. Ltd. v. Republic of Yemen, ICSID Case No. ARB/14/30, Decision on Jurisdiction, paras. 114–15 (May 31, 2017) (stating that “[t]his Tribunal sees no need to address in the abstract whether MFN provisions may in principle be applicable to dispute resolution provisions, but will turn instead to whether the text of this Treaty lends itself to such an application. In doing so, the Tribunal approaches the interpretation of the MFN terms of Article 3 by starting with the ordinary meaning of its terms as directed by Article 31 of the VCLT.”).

40 For a typology of different MFN clauses, see 2015 ILC Study Group Final Report, supra note 38, paras. 59–65. The ILC, id., para. 68, also notes that “[n]otwithstanding the variations in the wording of MFN clauses, there are interpretative issues that are common to all such clauses, whether in the field of trade, investment, or services.” Batifort and Heath, by contrast, fail to show that and how textual differences in older IIAs (should) matter. After all, different words may mean the same thing, just as the same word may mean different things. You will get the same type of vehicle when renting a “truck” in New York or a “lorry” in London; but you will find yourself in fundamentally different environments in a “coffee shop” in Vienna and Amsterdam.

41 ILC, Draft Articles on Most-Favoured-Nation Clauses , 2(2) ILC Y.B. 16 (1978)Google Scholar [hereinafter 1978 ILC Draft Articles].

42 Batifort & Heath, supra note 8, at 886 (quoting Vesel, Scott, Clearing a Path Through a Tangled Jurisprudence: Most-Favored-Nation Clauses and Dispute Settlement Provisions in Bilateral Investment Treaties , 32 Yale J. Int'l L. 125, 136 (2007)Google Scholar). Interestingly, however, Batifort and Heath do accept the relevance and authority of the 1978 ILC Draft Articles whenever this suits their argument. See Batifort & Heath, supra note 8, at 896, n. 134; 885, n. 70; 886, n. 77 (concerning the ejusdem generis principle).

43 2015 ILC Study Group Final Report, supra note 38, para. 212. The relevance of the core provisions of the 1978 Draft Articles as reflecting customary international law can also not be denied by pointing to the fact that the Draft Articles have never been adopted in the form of an international treaty. This is because the lack of transformation into a general treaty was not due to disagreement of states on its core provisions relating to the functioning, effect, and interpretation of MFN clauses, but rather to two parts that went beyond customary international law, namely provisions dealing with preferences for developing countries, on the one hand, and customs unions, on the other. See id., para. 18.

44 For the multilateral character of the interpretive framework established by the 1978 ILC Draft Articles and the interplay between the treaty-by-treaty approach and its interaction with considerations of other IIAs, see also 2015 ILC Study Group Final Report, supra note 38, paras. 145–49. On the importance of having recourse to general international law rules in the interpretation, see also Douglas, supra note 39, at 99–100, 110; Schill, supra note 39, at 358, 359.

45 1978 ILC Draft Articles, supra note 41, at 23, Commentary to Article 5, para. 6.

46 See also id. at 44, Commentary to Article 17, para. 1 (stating that “[i]t would seem obvious that, unless the clause otherwise provides or the parties to the treaty otherwise agree, the acquisition of rights by the beneficiary of the clause is not affected by the mere fact that the granting State extended the favorable treatment to a third State under an international agreement whether bilateral or multilateral”).

47 This was also the case in Ambatielos (Greece v. U.K.), Merits, 1953 ICJ Rep. 10 (May 19, 1953), where Greece relied on better treatment accorded by the United Kingdom under treaties with third states; yet the Court did not have to address that issue further in its judgment.

48 Anglo-Iranian Oil Company (U.K. v. Iran), 1952 ICJ Rep. 93, 109 (July 22, 1952) (emphases of “treaty” added).

49 Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), 1952 ICJ Rep. 176, 190 (Aug. 27, 1952).

50 See Appellate Body Report, Canada–Certain Measures Affecting the Automotive Industry, para. 84, WT/DS139/AB/R, WT/DS142/AB/R (May 31, 2000) (“The prohibition of discrimination in Article I:1 also serves as an incentive for concessions, negotiated reciprocally, to be extended to all other Members on an MFN basis.”); see further Bhala, supra note 1, paras. 10-015 f, 10-019 (showing that Art. I:1 GATT “mandates the extension to any member of any advantage granted to ‘any other country,’ whether or not the other country is a member” and may it be under a bilateral (international) agreement or a regional free trade agreement); Peter Van den Bossche, The Law and Policy of the World Trade Organization 314 (2005) (stating that Article I:1 of GATT “applies also, in principle, to advantages granted under the Plurilateral Agreements,” e.g., the Agreement on Civil Aircraft, and thus international agreements).

51 See the case law and diplomatic practice discussed in 1978 ILC Draft Articles, supra note 41, at 28–30, Commentary to Arts. 9 and 10, paras. 4–9.

52 Marie-France Houde & Fabrizio Pagani, Most-Favoured-Nation Treatment in International Investment Law (OECD Working Papers on International Investment 2004/2 2, 2004), available at http://dx.doi.org/10.1787/518757021651; van Aaken, Anne, To Do Away with International Law? , 17 Eur. J. Int'l L. 289, 299 (2006)Google Scholar; Wolfrum, Rüdiger, Article II GATS , in WTO-Trade in Services, at para. 5 (Wolfrum, Rüdiger, Stoll, Peter-Tobias & Feinäugle, Clemens eds., Max Planck Commentaries on World Trade Law, vol. 6, 2008)CrossRefGoogle Scholar.

53 Batifort & Heath, supra note 8, at 909 (relying on Suzy H. Nikièma, The Most-Favoured-Nation Clause in Investment Treaties, IISD Best Practice Series 21 (Feb. 2017)).

54 Even if individual treaty negotiators may not have been aware of that history, states as parties to international treaties have to be held to that practice, qua being subjects of international law. Cf. the argument as to bounded rationality in investment treaty-making in Lauge N. Skovgaard Poulsen, Bounded Rationality and Economic Diplomacy: The Politics of Investment Treaties in Developing Countries (2015).

55 Schill, supra note 13, at 123.

56 That the purely semantic distinction between “treatment” and “standards of treatment” would make any difference here, as Batifort & Heath, supra note 8, at 909–10 suggest, is little convincing given how broadly the term “treatment” has been understood under the ILC's 1978 Draft Articles and given the well-established practice that benefits granted under third-country treaties within the scope of the MFN clause were generally covered.

57 Moreover, it is unclear what a convincing normative case would be for why benefits granted under more favorable third-country treaties should be treated differently from similar benefits granted under domestic law.

58 Batifort & Heath, supra note 8, at 899.

59 See id. at 899–905.

60 See Pope & Talbot, Award on the Merits of Phase 2, supra note 27, paras. 108–09, 110–11, 117, 118; Pope & Talbot, Award in Respect of Damages, supra note 27, paras. 12, 57; ADF Group v. United States, supra note 25, paras. 193–98; Chemtura Corporation v. Government of Canada, UNCITRAL, Award, paras. 235–36 (Aug. 2, 2010).

61 Apotex Holdings Inc. and Apotex Inc. v. United States of America, ICSID Case No. ARB(AF)/12/1, Award, para. 9.71 (Aug. 25, 2014).

62 In this sense, see Caplan, Lee M. & Sharpe, Jeremy K., United States , in Commentaries on Selected Model Investment Treaties 755, 833 (Brown, Chester ed., 2013)Google Scholar; Roberts, Anthea, Power and Persuasion in Investment Treaty Interpretation: The Dual Roles of States , 104 AJIL 179, 219 (2010)Google Scholar; Tarcisio Gazzini, Interpretation of International Investment Treaties 193–95 (2016).

63 For the same reason, the Tribunal in Sempra v. Argentina refused to attribute weight to pleadings of state parties under the theory of unilateral acts. See Sempra Energy International v. Argentine Republic, ICSID Case No. ARB/02/16, Decision on Objections to Jurisdiction, para. 146 (May 11, 2005) (“The fact that international law recognizes unilateral acts as a source of obligations is separate from the discussion in the matter of this dispute, since the essential requirement for that to happen is that there be the intention to create an obligation. The Tribunal cannot presume that intention if it is not expressly stated. Counsel representing the State in arbitration proceedings have the duty to put forward all the arguments they deem appropriate to defend their position, but a tribunal could not presume that each of those arguments constitutes the expression of a unilateral act that obligates the State.”).

64 See Pope & Talbot, Eighth Submission of the United States (Dec. 3, 2001) (submitting Methanex Corporation v. United States of America, UNCITRAL, Response of Respondent United States of America to Methanex's Submission Concerning the NAFTA Free Trade Commission's July 31, 2001 Interpretation (Oct. 26, 2001)).

65 NAFTA Free Trade Commission, supra note 30, Section B.

66 See NAFTA Article 2001(2)(c) (addressing the competence of the Commission) and NAFTA Article 1131(2) (providing that “[a]n interpretation by the Commission of a provision of this Agreement shall be binding on a Tribunal”).

67 See Batifort & Heath, supra note 8, at 903–04 (pointing out the argument to this effect in Chemtura v. Canada, supra note 60, Canada's Counter-Memorial, paras. 875–78).

68 To my knowledge, no systematic citation analysis of NAFTA awards has been undertaken. But there is anecdotal evidence that NAFTA awards focus, more than other investment treaty awards, on NAFTA-specific precedent. This is particularly apparent in respect of the interpretation of Article 1105 of NAFTA, but can also be noted in other respects. See, for example, Apotex Holdings v. United States, supra note 61, paras. 9.41–.47 (where the Tribunal refers exclusively to NAFTA precedent in determining whether Article 1105 of NAFTA contains a “due process” requirement); William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware, Inc. v. Government of Canada, UNCITRAL/NAFTA, PCA Case No. 2009-04, Award on Jurisdiction and Liability, paras. 260–61 (Mar. 17, 2015) (rejecting an ECtHR case on the issue of timeliness under Article 116(2) of NAFTA and insisting instead that “[t]he most relevant case law concerns timeliness in the NAFTA context”—quote id., para. 261), and id., paras. 427–45 (focusing on NAFTA precedent on the interpretation of Article 1105 of NAFTA and emphasizing that “the trend in the wider world outside NAFTA is only relevant to the extent that such trend has affected the international minimum standard under customary international law”—quote id., para. 436); similarly, but slightly more open in its formulation to the “world outside NAFTA,” Glamis Gold, Ltd. v. United States of America, UNCITRAL, Award, para. 611 (June 8, 2009) (concluding that the Tribunal “may look solely to arbitral awards—including BIT awards—that seek to be understood by reference to the customary international law minimum standard of treatment, as opposed to any autonomous standard”).

69 See, e.g., Patrick Dumberry, The Fair and Equitable Treatment Standard: A Guide to NAFTA Case Law on Article 1105 (2013); Fifteen Years of NAFTA Chapter 11 Arbitration (Frédéric Bachand ed., 2011); Meg N. Kinnear, Andrea K. Bjorklund & John F.G. Hannaford, Investment Disputes Under NAFTA: An Annotated Guide to NAFTA Chapter 11 (2006); NAFTA Investment Law and Arbitration: Past Issues, Current Practice, Future Prospects (Todd Weiler ed., 2004).

70 See Schill, supra note 13, at 196 (explaining that “[o]nly changes in a State's investment treaty practice that are accompanied by restrictions in MFN clauses themselves will enable States to isolate new investment treaties from a multilateralization of earlier agreements”). Consequently, it is a fundamental misunderstanding to think, as Batifort & Heath, supra note 8, at 875, do, that “the presence of MFN clauses in treaties limits the ability of states, for reasons of domestic or foreign policy, to negotiate different agreements with different treaty partners” or “undermine efforts—now underway in a variety of fora—to ‘rebalance’ investment agreements through renewed attention to the scope and effect of other substantive provisions” (id.). “Rebalancing” is possible, but needs to encompass a “rebalancing” of the MFN clause in the rebalanced treaty in order to exclude a claim of covered investors to equal treatment with third-country investors covered by older treaties that are not “rebalanced.”

71 For an example of this interpretative use of newer IIAS on a different issue, see Philip Morris Brands and Others v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Award, paras. 300–01 (July 8, 2016). See further Mitchell & Munro, supra note 16.

72 İçkale v. Turkmenistan, supra note 6, paras. 314–32. See Batifort & Heath, supra note 8, at 899 for their assessment of the award.

73 See İçkale v. Turkmenistan, supra note 6, paras. 315–16 (claimant relying, inter alia, on Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Decision on Jurisdiction (Nov. 14, 2005); Rumeli Telecom A.S. and Telsim Mobile Telekominikasyon Hizmetleri A.S. v. Republic of Kazakhstan, ICSID Case No. ARB/05/16, Award (July 29, 2008); and EDF International S.A., SAUR International S.A. and Léon Participaciones Argentinas S.A. v. Argentine Republic, ICSID Case No. ARB/03/23, Award, paras. 322–24 (June 11, 2012), and respondent, intera alia, relying, on or discussing Ambatielos, supra note 47; Hochtief AG v. Argentine Republic, ICSID Case No. ARB/07/31, Decision on Jurisdiction (Oct. 24, 2011); Noble Ventures, Inc. v. Romania, ICSID Case No. ARB/01/11, Award (Oct. 12, 2005); and Salini Costruttori S.p.A. and Italstrade S.p.A. v. Hashemite Kingdom of Jordan, ICSID Case No. ARB/02/13, Award (Jan. 31, 2006)).

74 Note two interesting inconsistencies in the Tribunal's award with respect to considering authorities outside the four corners of the applicably treaty. First, the Tribunal on one occasion used arbitral precedent under third-country IIAs to support its holding “that preambles to treaties are not an operative part of the treaty and do not create binding legal obligations which are capable of giving rise to a distinct cause of action.” See İçkale v. Turkmenistan, supra note 6, para. 337 (citing Continental Casualty Company v. Argentine Republic, ICSID Case No. ARB/03/9, Award (Sept. 5, 2008); Société Générale v. Dominican Republic, LCIA Case No. UN 7927, Award on Preliminary Objections to Jurisdiction (Sept. 19, 2008)). But it did not do so with respect to the MFN issue. Second, one of the arbitrators, Philippe Sands, criticized in his Partially Dissenting Opinion, albeit on another point, that “none of the authorities that adopt a different view … is addressed or distinguished.” See İçkale v. Turkmenistan, supra note 6, Partially Dissenting Opinion by Professor Philippe Sands QC, para. 6. On another issue, Sands criticized the majority for “cit[ing] not a single authority in support of its conclusion, instead making the point by assertion that the distinction between jurisdiction and admissibility is a fine one and that ‘reasonable arbitrators may reasonably disagree.’ Reasonable arbitrators may indeed reasonably disagree, but the nature of the disagreement is more easily comprehended—and the possibility of its resolution more likely —if it is accompanied by reasoning that cites to existing authorities.” See id., para. 9. Somewhat curiously, Sands did not, however, consider that the same considerations should have been applied to the MFN issue.

75 Notably, Batifort and Heath do not undertake such an analysis, unlike with respect to the arbitral pronouncements that used MFN clauses to apply better standards of treatment. This would have been necessary, however, in light of the importance they attribute to the award as a lodestar of the new MFN debate.

76 İçkale v. Turkmenistan, supra note 6, para. 328.

77 Id., para. 329.

78 Id., paras. 328–29.

79 See supra Section III.

80 İçkale v. Turkmenistan, supra note 6, para. 329.

81 This is the only option the Tribunal considered and dismissed as making the qualifier superfluous and ineffective contrary to the need to give it effet utile. See id., para. 329 (“[I]ndeed, if the terms ‘in similar situations’ were to be read to coincide with the territorial scope of application of the treaty, they would not be given any meaning and would effectively become redundant as there would be no difference between the clause ‘treatment no less favourable than that accorded in similar situations … to investments of investors of any third country’ and ‘treatment no less favorable than that accorded … to investments of investors of any third country.’ Such a reading would not be consistent with the generally accepted rules of treaty interpretation, including the principle of effectiveness, or effet utile, which requires that each term of a treaty provision should be given a meaning and effect.”).

82 More generally on the argument that international investment law is a genuinely multilateral system of law that somewhat paradoxically has developed on the basis of bilateral treaties, see Schill, supra note 13.

83 For the advantages of multilateral over preferential rules, see id. at 106–17.

84 Batifort & Heath, supra note 8, at 913.

85 Schill, supra note 13, at 133–34.

86 On the role of ideology in this regard, see Sommer, Louise, Die staatsideologischen Voraussetzungen des Kampfes gegen die Meistbegünstigungsklausel , 16 Zeitschrift für öffentliches Recht 265 (1936)Google Scholar.

87 Batifort & Heath, supra note 8, at 907.

88 See Schill, Stephan W., Reforming Investor-State Dispute Settlement: A (Comparative and International) Constitutional Law Framework , 20 J. Int'l Econ. L. 649 (2017)Google Scholar.