Friday, November 3, 2017

Batifort & Heath: The New Debate on the Interpretation of MFN Clauses in Investment Treaties

Simon Batifort (Curtis, Mallet-Prevost, Colt & Mosle) & J. Benton Heath (U.S. Department of State) have posted The New Debate on the Interpretation of MFN Clauses in Investment Treaties: Putting the Brakes on Multilateralization (American Journal of International Law, forthcoming). Here's the abstract:
This Article critically examines the conventional wisdom that most-favored-nation (MFN) clauses in investment treaties can always be used to "import" standards of treatment from other treaties with third parties. We argue that tribunals applying MFN clauses have relied on entrenched and unexamined presumptions as to the nature or essence of MFN clauses. This practice has obscured variation among clauses in investment agreements and other treaties, and it has led interpreters to adopt an unduly uniform approach to the function of MFN provisions. A careful analysis of specific clauses leads to a much more nuanced picture and calls into question the prevailing view that all MFN clauses in investment treaties were designed to import standards of treatment. By bringing our treaty-by-treaty, “bottom-up” approach into contact with the prevailing top-down presumptions about MFN importation, we hope to provoke a new debate – one which drives toward a more balanced approach to the interpretation of investment treaties.