Itisaluna and Others v Iraq: The OIC Agreement Conundrum: Consent to ICSID Arbitration and the MFN Clauses Saga

Abstract

In an Award dated 3 April 2020 (Itisaluna Award), the Tribunal analyzed whether the most favoured nation (MFN) clause in article 8 of the Organization of Islamic Co-operation (OIC) Agreement allows a foreign investor to import a provision permitting access to International Centre for the Settlement of Investment Disputes (ICSID) arbitration from bilateral investment treaties (BITs) concluded between Iraq and third countries. In this Award, the Tribunal dismissed the Claimants’ attempts to use the MFN clause in the OIC Agreement to import Iraq’s consent to ICSID arbitration from other BITs. The Tribunal declined jurisdiction on the ground that the OIC Agreement does not establish clear consent to ICSID arbitration. The Tribunal majority’s approach was subject to a dissent by arbitrator Peter, who was of the view that the Tribunal had jurisdiction on the ground that the general consent to arbitration in article 17 of the OIC Agreement could extend to...