Favoured Nation Treatment Research Articles

Reevaluating the Most Favored-Nation Treatment: Addressing Challenges in Modern Trade

As global trade continues to evolve, the foundational principles that govern international commerce are increasingly scrutinized. The Most Favored-Nation (MFN) principle, a cornerstone of the World Trade Organization (WTO), was designed to foster fairness by mandating equal trade concessions for all members, thereby ensuring non-discriminatory trading behaviors. This research paper focused on the challenges of the Most Favored-Nation (MFN) principle within the World Trade Organization (WTO), a clause that mandates equal trade concessions for all members, ensuring non-discrimination. The research question investigates whether the MFN principle effectively promotes fairness in international trade or if it unintentionally exacerbates economic inequalities, particularly for developing countries. Findings reveal that MFN clauses often reduce market competition and lead to higher prices, while also disadvantaging developing countries that struggle to compete with developed nations. The paper underscores the need for MFN principle reform, such as advocating for differential pricing strategies for enhancing economic competition, setting exceptions for the poorest countries to implement tailored trade policies, and empowering these nations to challenge unfair practices by richer countries. These reforms aim to create a fairer and more balanced global trade system that supports inclusive economic growth for the whole world.

Review on the Illegality and Criteria for Determining the Most Favored Nation Treatment of Online Platform Operators under the E-Commerce Act

Review on the Illegality and Criteria for Determining the Most Favored Nation Treatment of Online Platform Operators under the E-Commerce Act

Wartime Trade Policy Measures in Comparison of the Historical Periods of the First World War and the Special Military Operation

With the beginning of the special military operation (SMO), a new type of foreign trade policy is forming, based on restrictions. History shows that the practice of restrictions on trade operations is not new. The article compares Russia’s trade policy measures introduced during the First World War of 2014–2018 and the SMO, which began in 2022. The goal is to identify tools that are not currently used. Restrictions on exports and imports, measures to stimulate imports, and measures to build new trade routes are considered. Even before the start of the SMO, from the moment of political aggravation, Russia limited the export of wood and fertilizers, which contradicted the Protocol on Accession to the WTO and the refusal of quantitative restrictions. Unfriendly countries that applied preventive sanctions against Russia, with the beginning of the SMO, denied Russia most favored nation treatment. As during the First World War, grains, flour and sugar were among the food products subject to government export restrictions. Both periods were characterized by measures to stimulate imports in an effort to provide industry with raw materials and equipment. Import restriction measures in the first period applied to luxury goods, in the second they took the form of sanctions against unfriendly countries. The war period was characterized by growing interest in the northern sea routes. Compared with World War I, modern export restriction policies were more varied in terms of product coverage, but lacked the specific details by export directions that were developed a century ago. Many of the modern measures allow exemptions only in relation to EAEU countries. In our opinion, exemptions from restrictions on the export of humanitarian goods could be made for the developing countries which are most in need of grain or fertilizers.

Economic and Humanitarian Cooperation Between the Russian Federation and the IRA (2001–2021)

The article is devoted to trade, economic and humanitarian cooperation and cooperation in the field of education between Russia and the Islamic Republic of Afghanistan. The main obstacle to economic interaction was removed: the debt problem was settled, which opened up opportunities for state financing of economic projects. Russian firms have taken an active part in the revival of Afghanistan. The creation of a number of joint organizations and the most favored nation treatment led to the fact that in 2011 and 2014 trade between Russia and Afghanistan reached its peak. Humanitarian cooperation also developed. Russia provided assistance to Afghanistan in the field of education.

BALANCING INVESTOR PROTECTION WITH A STATE’S REGULATORY AUTONOMY IN THE AMENDED SADC FIP

This article focuses on the 2016 Amended Annex 1 to the Southern African Development Community (SADC) Finance and Investment Protocol (FIP) (the Amended Annex), which entered into force on 22 August 2017. It aims at a comprehensive assessment of the adequacy of the Amended Annex in balancing investor protection with SADC member states’ quest for domestic policy space in the content of the treaty provisions. Prior to the amendment, the 2006 SADC FIP contained clauses that were considered challenging in the old international investment agreements (IIAs) – such as broad definitions of “investor” and “investment”, provision for international arbitration as a recourse, and according foreign investors fair and equitable treatment (FET) and most favoured nation (MFN) treatment. The challenges associated with bilateral investment treaties (BITs) (especially investor-state dispute settlement (ISDS) mechanisms, restrictions on sovereign policy space and regulatory autonomy) necessitated a review by the SADC member states of the 2006 SADC FIP. The purpose of this article is to reflect on the implications of the 2016 Amended Annex 1 to the SADC FIP with a view to finding a balance between protection enjoyed by investors and the host states’ right to regulate. The article adopts a comparative international law approach, which is useful in order better to understand a SADC member country’s approach to foreign investment protection.

Comparative Analysis of Bilateral Investment Treaties of the Russian Federation

The paper analyzes bilateral investment treaties, one of the parties to which is Russia. The article compares the provisions contained in the 1992 and 2001 model agreements of Russia, as well as the provisions of the 2016 Regulations. The concepts of “foreign investor” and “investment” are considered, discrepancies in the concepts and wording used in treaties with different states are revealed. In a comparative aspect, the authors explore the operation of treaties over time, the use of the standard of fair and equal treatment, and the application of provisions on expropriation. The features of the formulation of the national treatment standard and the most favored nation treatment standard, as well as the umbrella clause are revealed.

Interpretation of WTO's Panel Report on United States — Tariff Measures on Certain Goods from China and Its Enlightenment to China

The United States imposed a high tariff on importing goods from China which valued USD 34 billion and USD 200 billion respectively in 2018 and 2019. This measurement not only violated the most favored nation treatment principle, but also violated the tariff concession commitment which the US offered to China. With respect to the United States’ defence under Article XX(a) of the GATT 1994, the Panel adopted a holistic approach to determining whether the measures at issue were “necessary to protect public morals” and found that there were no relationship. The ruling has the following enlightenments: the enterprises should value the proof in WTO litigation and make use of the rules and procedures governing the settlement of disputes. Finally, the enterprises should pay more emphasis on the market of One Belt One Road to expand more trade benefits and enjoy the double win.

Bilateral Investment Treaty and Overseas M&A of Chinese Companies：Evidence from a Quasi-natural Experiment

As an important legal document signed between two countries to promote and protect investment, bilateral investment treaties play an important role in bilateral international investment. This paper intends to answer the following questions: What is the impact of bilateral investment treaties on Chinese companies’ overseas mergers and acquisitions（M&A）? What is the impact mechanism? How should Chinese companies take advantage of the effect of bilateral investment treaties on overseas M&A, so as to expand the scale and scope of overseas M&A while promoting the success of M&A?Based on the progressive difference-in-difference model, this paper delves into the theoretical mechanism and impact of bilateral investment treaties on Chinese companies’ overseas M&A by using bilateral investment treaties as a quasi-natural experiment with the country panel data of 140 countries from 2004 to 2018. It comes to the following conclusions: Firstly, compared with countries that have not signed bilateral investment treaties, bilateral investment treaties have a significant positive effect on Chinese companies’ willingness to acquire overseas and successful M&A. Secondly, in terms of dynamic effects, bilateral investment treaties have a long-term effect on the promotion of Chinese companies’ overseas M&A, and their volatility has increased. Thirdly, the promotion effect of bilateral investment treaties is significantly heterogeneous. The promotion effect of bilateral investment treaties is more significant in Asia and Africa, stronger in high-quality countries and developed countries, and stronger in non-state-owned companies. Fourthly, the expansibility test shows that the quality of the text of bilateral investment treaties have a significant promoting effect on China’s overseas M&A. Fifthly, through the decomposition and quantification of the specific provisions of investment treaties, “Definition and Scope of Investment”“Fair and Equitable Treatment” and “Most Favored Nation Treatment” are the key provisions that affect the promotion of China’s overseas M&A in bilateral investment treaties. This paper enriches the research theory in the field of bilateral investment treaties and overseas M&A relations, provides policy revelations for Chinese companies’ overseas M&A and the new round of bilateral investment treaty practices, and contributes Chinese wisdom to global economic governance.In short, this paper contributes to the existing research in the following three perspectives: Firstly, it specifically examines the impact of bilateral investment treaties on the number of Chinese companies’ M&A cases and successful M&A cases in a more in-depth way. Secondly, it uses bilateral investment treaties as a quasi-natural experiment, and conducts an empirical research based on the progressive difference-in-difference model. It also explores the impact of the text quality of investment treaties, and examines the internal mechanism of bilateral investment treaties from the dimensions of investment definition and scope, fair and equitable treatment, national treatment, most-favored-nation treatment, expropriation compensation, umbrellas, and investment dispute settlement based on the specific terms of investment treaties. Lastly, it lays an important empirical foundation for deepening bilateral investment treaties and promoting overseas M&A by Chinese companies, as well as for building a scientific and reasonable bilateral investment treaty system and promoting the formation of a new pattern of comprehensive opening.

Testing for Consistency: Certain Digital Tax Measures and WTO Non-Discrimination

Few issues have challenged tax policymakers and commentators as much as digital taxation has in recent years. Ongoing efforts to reconstruct the rules of international tax to ‘properly’ govern the taxation of the global digital economy have evoked some important tax and trade related considerations. As regards the latter, unilateral attempts by various states – partly spurred on by a lack of multilateral consensus – to tax nonresident digitalized businesses threaten to disrupt international trade relations, with threats of trade war exchanged between some World Trade Organization (WTO) Member States over the propriety of the proposed tax measures. As the conversation on the underlying tax issues progresses, this article examines the consistency of some features of the various unilateral digital tax measures with the fundamental WTO principle of non-discrimination, as contained in the General Agreement on Trade in Services (GATS). Using the French Digital Service Tax (French DST) as a focal point, the article argues that there is a case to be made that some common features of the unilateral digital tax measures violate either the most favoured nation or national treatment rules of WTO non-discrimination. International Tax, International Trade, Digitalization, E-Commerce, WTO, Non-discrimination, Most Favoured Nation, National Treatment

Global Food Trade in a Rule Based System

A rule-based regime of international trade is built upon norms of equality and non-discrimination. It helps maintain equity in international trade by the observance of principles such as that of Most Favoured Nation and National Treatment. A closer inspection of the sector wise international trade practices of nations suggests that there are deviations from the rule-based mechanism of World Trade Organisation. This detrimentally impacts the balance of trade. This research article analyses the application of the rule-based regime of the World Trade Organisation with special reference to instances of inequalities in regulations imposed on trade in food products in the context of India and other developing countries. The paper concludes with an analysis of the plausible reasons for the rejection of exports from developing countries and suggests the need for the rectification of such inequalities.

From the History of Soviet-Polish Relations in the Early 1920s: the Problem of “Transit to Persia”

For the first time in Russian historiography, the discussion that flared up soon after the conclusion of the Riga Peace Treaty in the People’s Commissariat for Foreign Affairs and the People’s Commissariat of Trade on the possibility of granting Poland the right to transit trade with Persia and other countries of the East. It is noted that the head of the People’s Commissariat of Trade L.B. Krasin criticized the position of the plenipotentiary representative of the RSFSR in Warsaw L.L. Obolensky, who considered it possible to grant Poland the right of transit to the East and the most favored nation treatment in trade on reciprocity terms in order to strengthen Moscow’s position in the Polish-Soviet negotiations. It is shown that the People’s Commissariat for Trade did not consider such cooperation to be equivalent, since, according to L.B. Krasin, Poland needed more transit through the Soviet republics than the Soviet state needed transit through Poland. In the course of the study, it was found that the People’s Commissariat of Trade allowed such a situation only if Poland would additionally make political concessions, the nature of which had not yet been clear at that time. It is traced in the article how, as a result of the discussion, the line of the People’s Commissariat for Trade won and in fact the Soviet leadership adhered to it until mid-1923. The relevance and novelty of the research is due to the introduction into scientific circulation of archival materials declassified in the post-Soviet era and for the first time introduced into scientific circulation, which allow discovering new vicissitudes of Polish-Soviet relations, including the organization of transit trade.

IMPLICATIONS OF THE PRINCIPLE OF NON-DISCRIMINATION IN THE INDONESIA-EUROPEAN UNION COMPREHENSIVE ECONOMIC PARTNERSHIP AGREEMENT ON GOVERNMENT PROCUREMENT CHAPTER TOWARD REGULATIONS OF DOMESTIC PRODUCT USE IN INDONESIA

This article aims to explain the differences between regulations on the use of domestic product in Indonesia and the principle of non-discrimination in Indonesia-European Union Comprehensive Economic Partnership Agreement (I-EU CEPA) on Government Procurement Chapter and the legal consequences for domestic regulations in Indonesia. The research method used is a normative juridical method with exploratory specifications. The results of this study indicate that the principle of non-discrimination, which consists of most favored-nation treatment and national treatment in the I-EU CEPA on Government Procurement Chapter, differs from regulations in Indonesia because the use of domestic product is mandatory in the government procurement and discriminatory against foreign suppliers. The difference in these provisions has implications, namely if Indonesia and the European Union agree to the I-EU CEPA, they must adjust the regulations for the use of domestic product in accordance with the principle of non-discrimination in the I-EU CEPA or World Trade Organization Agreement on Government Procurement (WTO GPA) or ratify the I-EU CEPA in the form of a Law and its enforcement is lex specialis and it is necessary to make adjustments to the implementing regulations by giving time after entry into force. In addition, Indonesia does not have the obligation to provide equal treatment to third countries because the I-EU CEPA is a bilateral agreement and Indonesia is not yet bound by a multilateral agreement, namely the WTO GPA. In addition, if Indonesia and the European Union agree to an I-EU CEPA, the Indonesian side cannot cancel it on the grounds that it violates the provisions of national law.

Implication of International law on Foreign Investment Process: A Reference of Nepal

Foreign investment is the movement of capital flow from one country to another country. A company and natural person can be the part of management of company or corporation in another country. Traditionally foreign investment was mere the subject matter of contract which has been changed with the presence of international law. Many issues of foreign investment are addressed by multilateral treaty provisions. There are financial investment; foreign direct investment (horizontal investment, vertical investment, conglomerate investment, greenfield investment, brownfield investment), portfolio investment, official flows, commercial loans, and technological investment etc. There are classical approach, dependency approach and middle path approach of foreign investment. Classical economic theory argues that foreign investment is beneficial for host country whereas dependency theory is reverse to classical theory and middle path theory analyses both positive and negative aspect of foreign investment. Joint venture, management contract, turnkey operation, and licensing agreement are basic method of foreign investment in Nepal. There are bilateral, regional and multilateral instruments supporting for foreign investment. Bilateral instruments include Bilateral Investment Protection Treaties and Bilateral Double Taxation Avoidance Treaties whereas regional instruments are developed by African Union, European Union etc. Multilateral instruments are developed by International Monetary Fund (IMF), World Bank Group, World Trade Organization etc. Constitution of Nepal (2015 AD) has purported liberal and open economic policy to accelerate economic growth. Foreign Investment and Technology Transfer Act, 2075 (2019 AD) and Foreign Exchange (Regulation) Act, 2019 BS (1962 AD) are principal legislation for foreign investment in Nepal. There are various principles of foreign investment which are most favored nation treatment, national treatment, preferential treatment, full protection and security, fair and equitable treatment, protection against nationalization or expropriation and protection from threat agreements etc.

THE STUDY OF LAW ON INVESTMENT LIBERALISATION POLICIES IN THE REGION OF ASEAN AND THE EFFECTS ON INDONESIA

<p class="Bodytext0">In order to realize a single ASEAN market through the free flow of investment in ASEAN, the ASEAN member states have agreed on the <em>ASEAN Comprehensive Investment Agreement</em> or known by the term ACIA signed in Cha-Am (Thailand) on February 26, 2009. The issue is how the rule of law against the liberalization of foreign investment in the ACIA Agreement and how its influence on Indonesia. This research method is a normative juridical research by using a qualitative data analysis technique. Based on the Article 1 (a) of ACIA related to the purpose of the establishment of ACIA the ACIA Agreement contains the legal concept of foreign investment: an investment regime that is "free and open" in ASEAN in order to achieve the ultimate goal of economic integration within the ASEAN Economic Community. This is done through progressive liberalization measures on investment regimes in the Member States of ASEAN. The concept of investment liberalization in the ASEAN region is also well supported by the principles of <em>National Treatment</em> (Article 5 of ACIA) and the principles of <em>Most Favored Nation Treatment</em>/<em>MFN Treatment</em> (Article 6, paragraph 1 of ACIA) in which these two principles are widely known as the principles of law in international economic law. While Indonesia itself has been also engaged in signing and ratifying the ACIA Agreement through Presidential Regulations No. 49 of 2011. This certainly provides a challenge and an opportunity to take advantage of this Agreement, as well as adjust the settings of Indonesian foreign investment (Law No. 25 of 2007) with the consent of the ACIA.</p><p class="Bodytext0"><strong>Keywords:</strong> Implementation; Liberalization of Investment; ASEAN Region; Influence and Indonesia.</p>

Международно-правовые договоры о защите иностранного инвестора

The article is devoted to the analysis of international agreements on questions of protection of foreign investments. The multilateral agreements are investigated in the indicated area. There is a detailed analysis of agreements concluded originally by the USSR and then by the Russian Federation. The author draws attention to the lack of a unified approach to the definition of the concept of “foreign investment”, which has evolved over time. It is argued that both national and foreign investments are an economic category and there is no single legal concept for them, similarly with respect to the definition of the term “an investor”. 
 The guarantees to the foreign investors by virtue of bilateral international agreements on protection of foreign investments are investigated, in particular: most favored nation treatment, national treatment, payment obligation for compensation in case of nationalization, expropriation and other measures that have analogical characters, permission of disputes between an investor and a state accepting investment.
 The author comes to the conclusion that in international law there is no ordinary norm about investment disputes settlement by international commercial arbitration.
 The author analyzes changes to the Law of the Russian Federation of July 7, 1993 No. 5338-I on International Commercial Arbitration introduced as a result of the adoption of the Federal Law of December 29, 2015 No. 409-FZ. The article highlights the influence of state courts on the activities of international commercial arbitration, the expansion of the competence of international commercial arbitration and the filling of gaps in the 1993 Law on International Commercial Arbitration. The author believes that the expansion of the use of international commercial arbitration bodies ensures the creation of conditions to protect the interests of foreign investors.

Comparison of E-commerce Regulations in Chinese and American FTAs: Converging Approaches, Diverging Contents, and Polycentric Directions?

Insufficient WTO regulation of cross-border e-commerce confronts China and the US with three legal challenges: ambiguous classification of digital products, inadequate consumer and privacy protection, and weak protection of cross-border flow of information. China and the US have adopted converging approaches to address these challenges: inserting e-commerce chapters into their FTAs. However, the substance of these chapters is diverging. Firstly, US FTAs categorise digital products separately from goods and services and provide national treatment and most favoured nation treatment to products and their suppliers. China’s FTAs still offer no solutions to the classification of digital products and their treatment. Secondly, although China’s FTAs still provide weak protection for consumers and privacy, Chinese domestic law has converged towards US FTAs to provide better protection. Thirdly, US and China FTAs are significantly divergent in their regulation of the free flow of information. In the post-TPP era, a polycentric direction will emerge in the regulation of the free flow of information between China and the US.

The Favoured Treatment: Social-Legal Aspect

The article discusses the establishment of the most favoured nation treatment in respect of some members of the Russian legal life. The authors conclude that the legal treatment is a kind of the incentive treatment; it is consolidated in various sectors of the Russian law (for example, defense favoured treatment and a special legal treatment for the restoration of rights violated as a result of illegal and unjustified criminal prosecution are introduced by the rules of criminal procedure, tax law knows the institutions of offshore and special economic zones, etc.); it can be understood as ‘creating the best and the most favoured conditions for someone’. The importance of a direct reference to establishing the favoured treatment and expanding the scope of its application in the regulations is caused by the urgent needs for streamlining the relevant areas of legal regulation, improving the effectiveness of legal norms, providing the the most complete realization of rights and legitimate interests, as well as the early achievement of the purposes, which the Russian national legal system faces.

True Purpose of the Most-Favoured-Nation Clause in International Arbitration: Substantive Guarantee or Only a Cause of Action?

There are very few international law standards which have such a long standing as the Most-Favoured-Nation Clause (MFN). This fundamental norm of international treaty law was left out from the Vienna Convention on the Law of Treaties, but was developed as a separate topic of the UN International Law Commission and extensively used in the area of economic and trade liberalization. MFN has been the cornerstone of the GATT/WTO and consistently present in bilateral investment treaties (BITs). Given that there are around 2,800 BITs it is certain that MFN has been markedly present in international treaty law. On its face MFN clause provides a very powerful protection by equalizing the beneficiary of the MFN clause with all other persons (entities, States) with respect to rights and benefits. As the practice has shown its relevance is both substantive and procedural. However, this paper will not dwell much on procedural and substantive contents of the MFN. It will focus on the way the MFN is being employed as a part of litigation strategy in international proceedings. An overview of cases tends to show that MFN clause is used rather as a cause of action than as a tool for ensuring substantive protection before the dispute arises. In other words, there are few, if any, examples, which show that applicants in international investment arbitration do not invoke MFN clause while trying to ensure the most favored nation treatment during the performance of their investment, but it is rather a belated MFN argument raised by the investor before the investment tribunal for the first time. In other words, investors rarely use the clause to have what would seem to be its primary purpose: substantive protection. If this argument is raised for the first time in the proceeding, this means that MFN clause is perceived as a cause of action rather than as a genuine substantive guarantee. This approach of applicants and arbitral tribunals is criticized by the author from both deontological and normative perspective. Very simple testing of certain MFN awards can demonstrate their fallacy: retroactive construct of MFN clause makes the duty impossible to perform. Given a very genuine concept of the MFN and its effect, it is absurd to assume its automatic application. The main argument of the author is that the way the MFN is used as a cause of action demonstrates that it was never the intention of the applicants to use this clause as a ground for substantive guarantee but only for litigation strategy.

Dispute Settlement Mechanism Under WTO: Opportunities and Challenges

As WTO follows rules based mechanism, it works as a forum of world trade system. As dispute is an inevitable issue of the world even in trading system and in the procedure of application of rules, WTO provides forum for the settlement of dispute. It recommends member country to resolve their dispute themselves. If they are not successful to solve problem, negotiation or similar measures are applied to settle dispute. If all those mechanisms fail, then panel will be formed. There is the provision of appeal on the decision of panel. Failure to the compliance to the decision may result the possibility of countermeasures to the losing party. Amount of Compensation is determined through negotiations. Arbitration may also settle an issue. A trade sanction emanates suspension of concessions or obligations. Level of suspension of concessions shall be equivalent to the level of nullification or impairment. Developing countries used to get additional time frame for implementation of the decision of dispute settlement body. The operation of the Most Favoured Nation treatment and special and differential treatment to developing and least developed countries even in the time of dispute settlement can be more positive and constructive policy and action for them.

Most Favoured Nation Treatment -- Substantive Protection in Investment Law

Most investment treaties contain most favoured nation (‘MFN’) clauses. These clauses vary in their precise wording but in general state that the treatment or rights enjoyed by investors covered by a particular investment treaty shall not be less than that ‘accorded to investments made by investors of any third State’. MFN clauses reflect principles of equality and non-discrimination. As the tribunal in Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan noted, for example, MFN clauses ‘provide a level playing field…between foreign investors from different countries’. If one reflects on the difficulties likely to arise in the negotiation of an investment treaty, then one can appreciate why such clauses are widespread. At the point of negotiation, the inclusion of an MFN clause arguably reduces the burden on the negotiating parties to review their treaty partner’s prior treaty practice. This is because, generally speaking, any better protections or concessions afforded by the treaty partner in existing treaties of the same class would be incorporated by reference through the MFN clause. MFN clauses arguably also operate to ensure that States will not be disadvantaged by the later conclusion by their treaty partner of treaties conferring more favourable treatment on investors of other countries. MFN clauses might also reduce the necessity for States to renegotiate older treaties if their policy toward the protection of foreign investment evolves to encompass more favourable standards of protection of a type encompassed by their earlier treaties. As a substantive protection obligation, an MFN clause in a ‘base treaty’ operates by reference to any more favourable standards of protection accorded by the host State to investors of third party nationality – whether that treatment is accorded in practice (‘comparator practice’), or is stipulated in a provision of a treaty between the host State and a third State (a ‘comparator treaty’). The invocation of substantive MFN treatment is usually made by reference to a comparator treaty rather than comparator practice, though even the reference to a comparator treaty has various permutations. The notion that MFN clauses could operate to incorporate stronger substantive protection standards is overwhelmingly accepted in principle, but successful invocation of the MFN provision to reach a stronger substantive protection obligation is extremely rare in practice. Whilst MFN clauses do have the potential to act as a ‘potent ratchet’ for substantive protections, therefore, it is important to recognise how such clauses have been invoked as well as the manner in which investment treaties, as interpreted by tribunals, in practice provide a scope of substantive MFN protection that is narrower than generally assumed to be the case.