Abstract
On the big questions, Simon Batifort and J. Benton Heath are plainly right. Dogmatic presumptions about the necessary effect of particular clauses and woolly notions of systemic teleology may distract the interpreter from the task of finding the meaning that represents the intentions of the parties, best articulated in the specific terms chosen. Customary rules on treaty interpretation, reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT), are meant to be flexibly adapted to the case in hand. But in applying their insight to the small print of the interpretative question, Batifort and Heath are less persuasive. Can most favored nation (MFN) clauses be generally relied upon to, as they put it, “import” substantive standards of treatment of investment protection law? The authors are critical of the apparent consensus in favor of an affirmative answer—they call it “conventional wisdom”—and in this regard seem to me to be significantly overstating their case.
Highlights
On the big questions, Simon Batifort and J
Can most favored nation (MFN) clauses be generally relied upon to, as they put it, “import” substantive standards of treatment of investment protection law? The authors are critical of the apparent consensus in favor of an affirmative answer—they call it “conventional wisdom”—and in this regard seem to me to be significantly overstating their case
Have states challenged the determination of their obligations in investment treaties by means of MFN clauses? Or have they generally endorsed this practice? It is a trite point that state practice is more difficult to identify in investment law than in other fields of international law, because formalized dispute settlement between investors and states pushes practice away from interstate relations where it is usually generated
Summary
The modest broader point is this: to approach the international legal argument with, as it were, ICSID Reports in hand and “ordinary meaning” rather loose in the holster[4] may well be a helpful technique for drafting a pleading. It reflects a restrictive conception of the international legal order, where “conventional wisdom” is not a pejorative but rather a shorthand description of the process by which the shared judgement on rules of international law is formed.[5]
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