Examining New Approaches to the Interpretation of MFN Clauses in International Investment Agreements - ARIA - Vol. 30, No. 1
Jeremy R. Stewart, LLM, Columbia Law School, Class of 2019
Originally from the American Review of International Arbitration (ARIA)
This article [...] seeks to draw deeper comparisons between MFN clauses in the World Trade Organization (“WTO”) and MFN clauses in IIAs. It also considers the implications of recent developments in State practice with respect to MFN clauses—particularly with respect to the Comprehensive Economic and Trade Agreement (“CETA”), the United States-Mexico-Canada Agreement (“USMCA”), and the EU-Japan Economic Partnership Agreement (“EJEPA”).
Section II gives a broad outline of the traditional approach to the interpretation of MFN clauses by investment tribunals and the challenges to this approach following İçkale.
Section III examines the different function of MFN clauses in the bilateral (or plurilateral) context of IIAs as compared with the multilateral context of the WTO.
Section IV then outlines new approaches to MFN clauses in recent IIAs, and considers the extent to which these new MFN clauses reflect a clarification, or a modification of the status quo.