Introduction to the Symposium on Simon Batifort and J. Benton Heath, “The New Debate on the Interpretation of MFN Clauses in Investment Treaties: Putting the Brakes on Multilateralization”

Donald Mcrae

doi:10.1017/aju.2018.31

Abstract

Introduction to the Symposium on Simon Batifort and J. Benton Heath, “The New Debate on the Interpretation of MFN Clauses in Investment Treaties: Putting the Brakes on Multilateralization” - Volume 112

Highlights

Donald McRae*Turkmenistan where the tribunal refused to apply an most favored nation (MFN) clause, preventing the claimants from relying on the substantive protections of another bilateral investment treaty (BIT).[2] Batifort and Heath argue that after Íçkale, states, litigants, and scholars can no longer automatically assume that substantive standards of treatment can be imported by way of an MFN clause
TO THE SYMPOSIUM ON SIMON BATIFORT AND J
Tribunals, and academics have been debating whether most favored nation (MFN) clauses can be used to incorporate procedural provisions from other treaties, Batifort and Heath launch a new debate on the hitherto uncontroversial assumption that MFN clauses can import substantive provisions

Summary

Donald McRae*

Turkmenistan where the tribunal refused to apply an MFN clause, preventing the claimants from relying on the substantive protections of another bilateral investment treaty (BIT).[2] Batifort and Heath argue that after Íçkale, states, litigants, and scholars can no longer automatically assume that substantive standards of treatment can be imported by way of an MFN clause. Past decisions, they say, have been based on a “top-down” approach to interpretation under which decision-makers have imposed presumptions about the nature of MFN clauses on the wording of the treaty. While welcoming the redirection of the MFN debate from the “stale and stalemated” question of whether

INTRODUCTION

AJIL UNBOUND

The Core of the Debate

The Issue of Treaty Interpretation

Conclusion